Hydraulic fracturing case chart - Arnold & Porter LLP

$Page 1: Hydraulic fracturing case chart - Arnold & Porter LLP$
Hydraulic Fracturing

Hydraulic Fracturing Case Chart

Government

Enforcement

Actions

Civil Tort Actions

Citizen Suits

Challenges to State

and Federal Laws

and Regulations

Challenges to

Municipal Actions

Challenges to

Agency Actions

Oil amp Gas Lease

Disputes

copy 2015 Arnold amp Porter LLP

Date last updated December 2 2015

For more information about Arnold amp Porter LLPrsquos hydraulic fracturing practice click here

Other Land Use

and Property

Rights Disputes

Defamation and

SLAPP Suits

Freedom of

Information

Lawsuits

Contract Disputes

Constitutional

Claims Other Disputes

Suits Against

Project Opponents

Civil Tort Actions

Maring v Nalbone Index No K12009001499

(NY 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-cv-

06629 (NY Sup Ct filed Nov 2009) (removed to WDNY Dec 2009) +

Ely v Cabot Oil amp Gas Corp No 09-CV-2284 (MD Pa filed Nov 2009) (mot to dismiss denied Nov 2010) (joint stip of voluntary dismissal Sept 2012) (RampR on Ely Estate claims Mar 2014) (RampR on Hubert family claims Mar 2014) (summ j for defs on strict liab claims Apr 2014) (RampR 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 defendantsrsquo motion to clarify Oct 2015) (order on plaintiffsrsquo motion for leave to take deposition Oct 2015) +

Scoma v Chesapeake Energy Corp No 10-CV-1385 (ND Tex filed July 2010) (dismissed with prejudice after settlement Dec 2011) +

Berish v Southwestern Energy Production Co 10-CV-1981 (MD 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) +

Sizelove v Williams Production Co LLC No 10-50355-367 (Tex Dist Ct filed Nov 2010) +

Hagy v Equitable Production Co No 10-CV-13722 (SD W Va filed Dec 2010) (motion for SJ granted May 2012 and June 2012) (4th Cir affrsquod Oct 2013) +

Mitchell v EnCana Oil amp Gas Inc No 10-CV-2555 (ND Tex filed Dec 2010) (voluntarily dismissed Nov 2011 after settlement) +

Otis v Chesapeake Appalachia LLC No 11-cv-00115 (Pa Ct Com Pl filed Dec 2010) (removed to MD Pa Jan 2011) Bidlack v Chesapeake Appalachia LLC No 11-cv-00129 (Pa Ct Com Pl amended complaint filed Dec 2010) (removed to MD Pa Jan 2011) +

Harris v Devon Energy Prod Co LP No 10-CV-0708 (ND Tex filed Dec 2010) (transferred to ED Tex Dec 2010) (report amp recommendation June 2011) (motion for partial dismissal granted July 2011) (report amp recommendation Dec 2011) (plaintiffsrsquo motion to dismiss without prejudice granted Jan 2012) (dismissal affirmed as modified 5th Cir Dec 2012) +

Smith v Devon Energy Prod Co LP No 11-CV-0104 (ND Tex filed Jan 2011) (transferred to ED Tex Mar 2011) (plaintiffsrsquo motion to dismiss without prejudice granted July 2012) +

Bombardiere v Schlumberger Tech Corp No 111-cv-00050 (W Va Cir Ct filed Feb 2011) (removed to ND WVa 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) +

tort actions continued on next page

return to first page

Parr v Aruba Petroleum Inc No 11-1650 (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 (NY Sup Ct Chemung Co filed under Index No 11-1168 Feb 2011) (removed to WDNY Mar 2011) (stip amp order June 2013) (mots denied June 2013) +

Andre v EXCO Resources Inc No 11-00161 (WD 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 revrsquod July 2013) (pet for cert filed Aug 2013) (cert granted Apr 2014) No 13SC576 (Colo affrsquod Apr 2015) +

Beckman v EXCO Resources Inc No 11-00617 (WD La filed Apr 2011)

Ginardi v Frontier Gas Services LLC No 11-CV-0420 (ED Ark filed May 2011) (motion for class certification denied) +

Tucker v Southwestern Energy Co 11-CV-0044 (ED Ark filed May 2011) (mot to dismiss granted in part Feb 2012) (dismissed after settlement Aug 2012) +

Civil Tort Actions

Berry v Southwestern Energy Co 11-CV-0045

(ED 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 (ED Ark filed June 2011) +

Scoggin v Cudd Pumping Servs Inc No 11-CV-00678 (ED Ark filed Sept 2011) (stip of dismissal without prejudice June 2013) +

Evenson v Antero Resources Corp No 2011-CV-5118 (Denver Co Dist Ct filed July 2011) (dismissed Aug 2012) +

Dillon v Antero Resources No 11-CV-1038 (WD Pa filed Aug 2011) Beca v Antero Resources 11-CV-1040 (WD Pa filed Aug 2011) +

Managan v Landmark 4 LLC (ND Ohio filed Mar 2012) Boggs v Landmark 4 LLC No 12-cv- 614 (ND Ohio filed Mar 2012) (motion to dismiss denied Aug 2012) +

Kamuck v Shell Energy Holdings GP LLC (MD Pa Apr 2012) (motion for Lone Pine case management order denied Sept 2012) (dismissed Mar 2015) +

Hiser v XTO Energy Inc (WD Ark mot to compel denied Aug 2012) (jury verdict for plaintiff Sept 2012) (mot for j as matter of law amp for new trial or remittitur denied Sept 2013) No 13-3443 (8th Cir affrsquod Oct 2014) +

Roth v Cabot Oil amp Gas Corp No 12-CV-00898 (Pa Ct Comm Pl filed Mar 2012) (removed to MD Pa May 2012) (first amended complaint filed Aug 2012)(denial of Lone Pine case management order Oct 2012) +


Teel v Chesapeake Appalachia LLC No 11-cv-5

(ND W Va Oct 2012) +

Magers v Chesapeake Appalachia LLC No 512-cv-49 (ND WVa) (mot to dismiss denied Apr 2013) (CNX mot to dismiss granted Aug 2013) (mot to amendalter j denied Dec 2013) (Columbia Gas mot for summ j granted Sept 2014) +

Whiteman v Chesapeake Appalachia LLC No 12-1790 (4th Cir Sept 4 2013) +

Reece v AES Corp No CIV-12-0457-JH (ED Okla Jan 2014) +

Leighton v Chesapeake Appalachia LLC No 113ndashCVndash2018 (WD Pa Nov 2013) +

Carter v EOG Resources Inc No 412ndashCVndash003 (DND Oct 2013) +

Stroud v Southwestern Energy Co No 412ndashcvndash500ndashDPM (ED 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 2011-008256-1 (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) +

Chesapeake Appalachia LLC v Cameron

International Corp No CIV-13-1118-M (WD Okla July 2014) +

Cerny v Marathon Oil Corp No 13-05-0018-CVK (Tex Dist Ct filed May 2013) No 513-cv-00562-XR (WD Tex removed June 2013 order denying remand Aug 2013 remand order Aug 2013) No 13-05-0018-CVK (Tex Dist Ct orders granting summ j to defs Aug 2014 notice of appeal Aug 2014) No 04-14-00650-CV (Tex Ct App affrsquod Oct 2015) (dissent Oct 2015) +

Ladra v New Dominion LLC No CJ-2014-115 (Okla Dist Ct filed Aug 2014) (dismissed Oct 2014) No SD - 113396 (Okla revrsquod June 2015) +

Butts v Southwestern Energy Production Co No 312-cv-1330 (MD 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 14-11177 (5th Cir remanded Aug 2015) +

Sciscoe v Enbridge Gathering (North Texas) LP No 07-13-00391-CV (Tex Ct App summ j for defs revrsquod in part June 2015) +

Civil Tort Actions Cole v EP Energy Co EampP LP No 415-cv-

02844 (SD Tex filed Sept 2015) +


Citizen Suits

Citizens for Pennsylvaniarsquos Future v Ultra Resources Inc No 411-CV-1360 (MD Pa filed July 21 2011) +

Clean Water Action v Mun Auth of McKeesport (WD Pa settled May 1 2012) +

Clean Air Council 60-Day Notice of Intent to Sue (concerning Pennsylvaniarsquos 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 13-00328 (WD 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 United States v Range Prod Co 11-CV-0116

(ND Tex filed Jan 2011) (case voluntarily dismissed Mar 2012) +

In re US Energy Dev Corp File No 11-57 (NY S DEC filed Jan 2012) +

In re Chesapeake Appalachia LLC (NYS Attrsquoy 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-03-2013-0050 (EPA Region III consent agreement and final order May 2013) +

US 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 amp L Energy Inc v Div of Oil amp Gas Resources Mgmt Appeal No 847 (Ohio Oil amp Gas Commrsquon June 2013) +

US v XTO Energy Inc 413-cv-01954-MWB (MD Pa ) (consent decree entered Sept 2013) +


US v Guesman 113 CR 113 (ND Ohio guilty plea Aug 2013) US v Lupo 413-cr-00113-DCN (ND 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) +

US v Chesapeake Appalachia LLC 513-cv-00170 (ND W Va consent decree entered Dec 2013) +

US v Stinson 112-cr-00012-JHM-HBB (WD 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 LP OGC File No 14-0012 (Fla Deprsquot of Envtl Prot consent order Apr 2014) No 14-0400 (Fla Deprsquot of Envtl Prot notice of revocation July 2014) +

State of Florida Department of Environmental Protection v Dan A Hughes Co LP No 112014CA0016430001XX (Fla Cir Ct filed July 18 2014) +

Carrizo (Marcellus) LLC (Pa Dept of Envtl Prot June 2014) +

United States v Garber No 114-cr-114 (DND information June 2014 plea agreement June 2014 minutes Sept 2014) +

Colo Oil amp Gas Conservation Commrsquon ldquo20-Day Injection Pauserdquo 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 (WD Pa indictment Feb 2014 change of plea Aug 2014) +

United States v Trans Energy Inc No 514-cv-00117 (ND W Va consent decree amp 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 113-cr-113 (ND Ohio guilty plea May 2015) +

Government Enforcement Actions In re Chevron Appalachia LLC (Pa Deprsquot of

Envtl Prot consent assessment of civil penalty May 2015) +

North Dakota Industrial Commission v Alturas Energy LLC No 23514 (ND Indus Commrsquon 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 amp 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

Plains Exploration amp Production Co v City of Culver City (Cal Super Ct LA 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 (NY Sup Ct Aug 2011) +

Matter of Wallach v Town of Dryden (NY Sup Ct filed Sept 2011) (ordinance upheld Feb 2012) (NY App Div affrsquod May 2013) (NY leave to appeal granted Aug 2013) (affrsquod June 2014) (mot for renewal amp reargument denied Oct 2014) +

Cooperstown Holstein Corp v Town of Middlefield (NY Sup Ct filed Sept 2011) (ordinance upheld Feb 2012) (NY App Div affrsquod May 2013) (NY leave to appeal granted Aug 2013) (affrsquod June 2014) +

Matter of Sierra Club v Village of Painted Post (NY Sup Ct Steuben Co filed June 2012) +

MarkWest Liberty Midstream amp 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 (NY Sup Ct Oct 2012) + return to first page

Colo Oil amp Gas Assrsquon v Longmont (Colo Dist Ct filed Dec 2012) (plaintiffsrsquo mot for summ j granted July 2014) (intervenorsrsquo notice of appeal Sept 2014)(stay order amp 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 revrsquod Feb 2013) No 2013-0465 (Ohio affrsquod Feb 2015) +

Lenape Resources Inc v Town of Avon Index No 1060-2012 (NY Sup Ct dismissed Mar 2013) No 14-00102 (NY App Div dismissed as moot Oct 2014) +

Grafe-Kieklak v Town of Sidney Index No 2013-602 (NY 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 amp 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) +

Colorado Oil amp Gas Association v City of Lafayette No 2013CV031746 (Colo Dist Ct filed Dec 2013) (summ j for plaintiffs Aug 2014) +

Cave v City amp 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 214-cv-00982 (WD Pa filed July 2014) +

MarkWest Liberty Midstream amp Resources LLC v Cecil Township Zoning Hearing Board No 223 CD 2013 (Pa Commw Ct judgment for def revrsquod Sept 2014) +



Pennsylvania General Energy Co LLC v Grant Township No 14-cv-209 (WD Pa filed Aug 8 2014) (plaintiffsrsquo 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 414-cv-00639-ALM (ED Tex notice of removal Oct 2014) (agreed motion to dismiss Mar 2015) +

Texas Oil amp 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 15-02058-362 (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 CD 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) +

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 (NY dismissal on standing grounds reversed Nov 2015) +

Challenges to Agency Actions

continued on next page return to first page

Summit Petroleum Corp v EPA No 09-434810-4572 (6th Cir filed Nov 2009Dec 2010) (EPArsquos decision vacated Aug 2012) +

Mont Envtl Info Ctr v BLM No 411-cv-00015(D Mont filed 2011) (motion for summary judgment granted June 2013) +

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

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

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

Independent Petroleum Association of America v EPA No 10-1233 (DC 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) +

Ozark Society v US Forest Service (ED Ark Mar 2012) +

Powder River Basin Resource Council v BLM No 112-cv-00996 (DDC filed June 2012) (defsrsquo mot for summ j granted Mar 2014) +

In re Bear Lake Properties (EAB June 2012) +

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

Minard Run Oil Co v US Forest Service (plaintiffsrsquo motion for summary judgment granted WD Pa Sept 2012) (affd 3d Cir Sept 2013) +

Environmental Working Group v NYS Dept of Envtl Conservation (NY Sup Ct Albany Co filed Sept 2012) +

Ctr for Biological Diversity v Cal Dept of Conservation (Cal Super Ct filed Oct 2012) (dismissed Jan 2014) +

Ctr for Biological Diversity v Cal Dept of Conservation No RG13664534 (Cal Super Ct filed Jan 2013) +

S Utah Wilderness Alliance v BLM No 13-cv-00047 (D Utah filed Jan 2013) (voluntary dismissal Feb 2013) +

In re Stonehaven Energy Mgmt LLC UIC Appeal No 12-02 (EAB Mar 2013) +

WildEarth Guardians v EPA No 13-1032 (DC Cir Feb 2013) (consolidated with No 12-1309 under lead case Mississippi Commrsquon on Envtl Quality v EPA May 2013) +

Ctr for Biological Diversity v BLM No 11-CV-6174 (ND 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) +

In re West Bay Exploration Co UIC App Nos 13-01 amp 13-02 (EAB Apr 2013) +

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

Manning v Pa Deprsquot of Envtl Protection No 2013-67 (Pa Envtl Hearing Bd notice of appeal filed May 2013) +

Matter of Encana Oil amp Gas (USA) Inc Case No U-17195 (Mich Pub Serv Commrsquon June 28 2013) +

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

Davis v Bureau of Land Management Case No 113-cv-00971 (WD Mich Sept 2013) +

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) +

WildEarth Guardians et al Petition to Deprsquot of the Interior amp BLM Concerning Sage Grouse Habitat (Oct 2013) +

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

Wallach v NY State Deprsquot of Envtl Conservation Index No 6770-2013 (NY Sup Ct filed Dec 2013) (dismissed July 2014) +

Chesapeake Appalachia LLC v Department of Environmental Protection No 1570 CD 2013 (Pa Commw Ct Apr 2014) +

Concerned Citizens of St Tammany v US Army Corps of Engrsquors No 14-1118 (ED La filed May 2014) (mot to dismiss without prej granted June 2014) +

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) +

Challenges to Agency Actions WildEarth Guardians v United States Forest

Service No 214-cv-00349-EJF (D Utah filed May 2014) +

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

Mosher v Dan A Hughes Co LP Case No 13-004254 (Fla Divrsquon 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 amp 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 0008432014 (NY Sup Ct filed Feb 2014) (dismissed July 2014) (notice of appeal July 2014) +

Del Riverkeeper Network v FERC No 13-1015 (DC Cir June 2014) +

Del Riverkeeper Network v Del River Basin Commrsquon No 10-cv-05639 (DNJ 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 A13ndash0745 A13ndash1198 (Minn Ct App June 2014) +

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


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

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

Defenders of Wildlife v Jewell No 114-cv-01025 (DDC filed June 2014) +

Permian Basin Petroleum Association v Department of the Interior No 714-cv-00050-RAJ (WD Tex filed June 2014) (rule vacated Sept 2015) +

Oklahoma Independent Petroleum Association v Department of the Interior No 414-cv-00307-JHP-PJC (ND Okla filed June 2014) +

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

Collier County v Fla Deprsquot of Envtl Prot OGC File No 14-0012 (Fla Deprsquot of Envtl Prot filed June 2014 FDEP letter to County Sept 2014 stipulation Oct 2014) +

Lander County Formal Administrative Protest (June 2014) +

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

Matter of US Energy Development Corp v New York State Department of Environmental Conservation No 266 CA 13-01416 (NY App Div June 2014) +

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

NO Gas Pipeline v Federal Energy Regulatory Commission Nos 12-1470 12-1474 12-1475 (DC 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) +

Reese River Basin Citizens Against Fracking LLC v Bureau of Land Management No 314-cv-00338 (D Nev filed June 2014) (dismissed Sept 2014) +

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

Del Riverkeeper Network v Pa Deprsquot of Envtl Prot No 2014-101 (Pa Envtl Hearing Bd filed July 2014 order Oct 2014) +

Del Riverkeeper Network v Pa Deprsquot of Envtl Prot No 2014-142-B (Pa Envtl Hearing Bd filed Oct 2014 1st amended notice of appeal Nov 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 US Army Corps of Engineers No 15-451 (ED La filed Feb 12 2015) +

Challenges to Agency Actions In re Wind River Oil amp 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) +

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

Center for Biological Diversity v United States Bureau of Land Management No 215-cv-4378 (CD Cal filed June 2015) +

Harvilchuck v Department of Environmental Protection No 717 CD 2014 (Pa Commw Ct dismissal revrsquod 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 214-cv-09281 (CD Cal order denying protective order Aug 2015) +

Town of Abita Springs v Welsh No 637209 (La Dist Ct filed Feb 2015) (permit vacated and remanded Aug 2015) +

Dineacute Citizens Against Ruining Our Environment v Jewell No 115-cv-00209 (DNM memorandum opinion amp order Aug 14 2015 memorandum opinion amp order Sept 16 2015) +


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

Morabito v Martens No 3265-15 (NY Sup Ct filed May 2015 am pet May 2015) (venue transfer Aug 2015) +

Osage Producers Association v Jewell No 15-cv-469 (ND Okla filed Aug 2015) +

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

Barlow amp Haun Inc v United States No 08-847L (Fed Cl dismissed Sept 2014) (affrsquod Oct 2015) +

Challenges to State and Federal Laws and Regulations

State of New York v United States Army Corps of Engineers 11-CV-2599 (EDNY filed May 2011) (dismissed Sept 2012) +

Delaware Riverkeeper Network v United States Army Corps of Engineers 11-CV-3780 (EDNY filed Aug 2011) (dismissed Sept 2012) +

Robinson Township v Pennsylvania 284-MD-2012 (Pa Commw Ct filed Mar 2012) (prelim inj granted Apr 2012) (decision overturning Act 31 issued July 2012) (inj upheld Aug 2012) (Pa affrsquod in part revrsquod in part Dec 2013) (app for reargument Jan 2014) (Pa denial of mot to intervene affrsquod 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 312-cv-1458 (MD 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 MD 2012 (Pa Commw Ct amended complaint filed Apr 2012) (prelim objections overruled Jan 2013) (mem amp order re application for special relief June 2014) (stipulation and order July 2014) (opinion Jan 2015) + return to first page

American Petroleum Institute v EPA No 12-140513-1108 (DC 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 13-1289 (DC 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 215-CV-043 (D Wyo filed Mar 2015) (Colo added as petitioner Apr 2015) (ND 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 215-cv-00041 (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 affrsquod July 2015) +

Southern Ute Indian Tribe v US 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 amp Gas Association v Pennsylvania No 321 MD 2015 (Pa Commw Ct filed June 2015) +

Oil and Gas Lease Disputes Coastal Oil and Gas Corp v Garza Energy Trust

268 SW3d 1 (Tex 2008) +

Alexander v Chesapeake Appalachia LLC 11-CV-0308 (NDNY filed Mar 18 2011) (decision compelling arbitration Mar 20 2012) +

Wiser v Enervest Operating LLC 10-CV-00794 (NDNY March 22 2011) +

Jewett Sportsmen amp 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 (NDNY 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 (ND Ohio filed March 27 2012) +

McRoberts v Chesapeake Energy Corp (WD Pa filed April 19 2012) +

Kalp v WPX Energy Appalacia LLC (WD Pa filed May 16 2012) +

Sonda v Chesapeake Appalacia LLC (ND W Vir filed July 6 2012) +

Vodenichar v Halcoacuten Energy Properties Inc No 213-cv-00360 (WD Pa) (motion to remand granted Apr 4 2013) (3d Cir afflsquod on other grounds Aug 16 2013) +


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 LLC No 12-4090 (6th Cir Jan 2014) +

Lewis v EnerQuest Oil and Gas LLC No 12-CV-1067 (WD Ark Jan 2014) +

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) (hearing Feb 7 2014) (plaintiffrsquos 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 04-11-00550-CV (Tex Ct App Aug 2013) (reconsideration amp rehrsquog denied Nov 2013) +

Community Bank of Raymore v Chesapeake Exploration LLC No 08-12-00025-CV (Tex Ct App Nov 2013) (rehrsquog denied Jan 2014) +

Liggett v Chesapeake Exploration LLC 512CV2389 (ND Ohio Oct 2013) +

Wiley v Triad Hunter LLC No 212-cv-00605 (SD Ohio filed June 2012) (Sept 27 2013) +

Oil and Gas Lease Disputes bull Stewart v Chesapeake Exploration

LLC Nos 12-4457 12-4466 12-4517 13-3021 (6th Cir Oct 2013) +

bull Amarado Oil Co Ltd v Davis No 512cv627 (ND Ohio Sept 17 2013) +

bull Demchak Partners LP v Chesapeake Appalachia LLC No 313-cv-02289 MD 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) +

bull Brown v Chesapeake Appalachia LLC No 512CV71 (ND W Va Aug 2013) +

bull Humberston v Chevron USA Inc No 1270 WDA 2012 (Pa Super Ct Aug 2013) +

bull Sorenson v Burlington Resources Oil amp Gas Co LP (ND Dist Ct filed Oct 2013) No 413-cv-00132-DLH-CSM (DND removed Nov 2013 first amended compl Jan 2014 mot to dismiss Feb 2014) (dismissed May 2014) (notice of appeal June 2014) +

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

bull Conglomerate Gas II LP v Chesapeake Operating Inc No 096 269136 13 (Tex Dist Ct filed Nov 8 2013) +


bull French v Occidental Permian Ltd (Tex Ct App judgment for defs Oct 2012) No 12-1002 (Tex pet for review granted Jan 2014) (affrsquod June 2014) +

bull Neuhard v Range ResourcesndashAppalachia LLC No 411-cv-01989 (ED Pa Apr 3 2014) +

bull Fort Worth Housing Finance Corp v Chesapeake Energy Corp No 352-272138-14 (Tex Dist Ct filed May 2014) +

bull Star-Telegram Inc v Chesapeake Exploration LLC No 096-272142-14 (Tex Dist Ct filed May 2014) +

bull Fort Worth Independent School District v Chesapeake Energy Corp No 236-272136-14 (Tex Dist Ct May 2014) +

bull Key Operating amp Equipment Inc v Hegar No 33968 (Tex Dist Ct filed Dec 2007) (inj issued) No 01-10-00350-CV (Tex Ct App revrsquod trial court Oct 2011) (op withdrawn on rehrsquog Jan 2013) No 13-0156 (Tex pet for review granted Dec 2013) (oral argument Feb 2014) (revrsquod June 2014) +

bull Eastham v Chesapeake Appalachia LLC No 13-4233 (6th Cir June 2014) +

bull Cole v EV Properties LP No 13-3677 (6th Cir Apr 2014) +

bull Suessenbach Family Limited Partnership v Access Midstream Partners LP No 314-cv-01197-MEM (MD Pa filed June 2014) +

bull Novy v Woolsey Energy Corp No 110599 (Kan Ct App June 2014 published version filed Sept 2014) +

bull Nolt v TS Calkins amp Associate LP No 1214 MDA 2013 (Pa Super Ct July 2014) +

bull Apache Deepwater LLC v McDaniel Partners Ltd No 14-0546 (Tex petition for review filed July 2014) +

bull Harrison v Cabot Oil amp Gas Corp No 61 MM 2014 (Pa July 2014) +

bull Golden Eye Resources LLC v Ganske No 20130219 (ND Sept 2014) +

bull Barber v Magnum Land Services LLC Nos 113-cv-33 to 113-cv-100 113-cv-113 to 113-cv-115 (ND W Va Oct 2014) +

bull Hupp v Beck Energy Corp 12 MO 6 13 MO 2 13 MO 3 13 MO 11 (Ohio Ct App Sept 2014) +

bull Beardslee v Inflection Energy LLC No 312ndashCVndash00242 (NDNY summ j for plaintiffs Nov 2012) No 12‐4897‐cv (2d Cir questions certified July 2014) (NY certified questions accepted Aug 2014) No 44 (NY ruling on certified questions Mar 2015) (2d Cir summ j affrsquod Aug 2015) +

Oil and Gas Lease Disputes bull Eagle Energy Production LLC v

Corporation Commission of the State of Oklahoma No 112165 (Okla Civ App order affrsquod Dec 2014) +

bull Cox v Kimble dba Red Hill Development No 13 CA 32 (Ohio Ct App ruling for lessor affrsquod Feb 2015) +

bull Dodd v Croskey No 2013-1730 (Ohio opinion June 2015) +

bull Chesapeake Exploration LLC v Hyder No 14-0302 (Tex opinion June 2015) +

bull Looney v Chesapeake Energy Corp No 215-cv-2108 (WD Ark filed June 2015) +

bull Mason v Range ResourcesndashAppalachia LLC No 12-cv-369 (WD Pa judgment for defs July 2015) +

bull May v BHP Billiton Petroleum (Fayetteville) LLC No 413-cv-494 (ED Ark summ j for def July 2015) +

bull Trinity Valley School v Chesapeake Operating Inc No 313-cv-01082-K (ND Tex pre-trial ruling Aug 2015) +

bull ConocoPhillips Co v Vaquillas Unproven Minerals Ltd No 04-15-00066-CV (Tex Ct App partial summ j for lessor affrsquod Aug 2015) +

bull Titan Operating LLC v Marsden No 02-14-00303-CV (Tex Ct App judgment for plaintiffs revrsquod Aug 2015) +


bull Seneca Resources Corp v S amp T Bank No 2057 WDA 2014 (Pa Super Ct judgment for lessee affrsquod Aug 2015) +

bull Norberg v Cottonwood Natural Resources LTD No 815CV71 (D Neb dismissed Sept 2015) +

bull Brown v Access Midstream Partners LP No 314-0591 (MD Pa motion to dismiss denied Sept 2015) +

bull SWN Production Co v Edge No 515-cv-00108 (ND W Va prelim inj granted Sept 2015) +

Other Land Use and Property Rights Disputes

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 111-cv-111 (W Va Cir Ct filed June 2011) (removed to ND W Va July 2011) (certification motion granted Mar 2013) +

Stone v Chesapeake Appalachia LLC No 512-cv-00102 (W Va Cir Ct filed June 2012) (removed to ND 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 NY Oil amp Gas Co LLC No 515347 (NY App Div June 2013) +

Rolla v Tank No 20130035 (ND Oct 2013) +

Reep v North Dakota Nos 20130110 amp 20130111 (ND Dec 2013) +

Chesapeake Exploration v Buell No 212-cv-916 (SD Ohio Jan 2014) +

Wellington Resource Group LLC v Beck Energy Corp No 212-CV-104 (SD 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 413-cv-02400 (MD 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 MD 2013 (Pa Commw Ct Oct 2014) +

Lightning Oil Co v Anadarko EampP Onshore LLC No 04-14-00903-CV (Tex Ct App summ j for def affrsquod Aug 2015) +

Pfeifer v Westmoreland County Tax Claim Bureau No 1346 CD 2014 (Pa Commw Ct dismissal affrsquod Sept 2015) +

Wright v Misty Mountain Farm LLC No 1658 MDA 2014 (Pa Super Ct summ j for defs affrsquod Oct 2015) +

Defamation and SLAPP Suits

Duck Creek Energy Inc v OrsquoDell (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) (rehrsquog 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 amp Gas Corp v Scroggins No 2013-1303 (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

Powder River Basin Resource Council v Wyoming Oil and Gas Conservation Commission (Wyo Dist Ct filed Mar 2012) (agency determination affrsquod Mar 2013) (notice of appeal Apr 2013) (Wyo oral argument Nov 2013) (Wyo No S-13-0120 revrsquod Mar 2014) +

Sierra Club v Ohio Dept of Natural Resources (Ohio Ct Common Pleas filed Apr 2012) +

Pa Dept of Envtl Prot v Legere (Pa Commw Ct July 2012) +

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

Citizens for a Healthy Cmty v US Deprsquot of Interior No 12-cv-01661 (D Colo filed June 2012) (plaintiffrsquos motion for summary judgment granted Feb 2013) (motion to intervene denied Apr 2013) +

Heavens v Pa Deprsquot 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-AP-000217 (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 214-cv-986 (SD Ohio summ j for def Aug 2015) +

Contract Disputes

Minerals Development amp Supply Co v Hunton amp Williams LLP (7th Cir Apr 2012) +

GMX Resources Inc v Oneok Rockies Midstream LLC 513-ap-01111 (Bankr WD Okla filed Nov 2013) +

Mifflin Energy Corp v Chevron Appalachia LLC GD No 10-007408 (Pa Ct Comm Pleas May 21 2014) (notice of appeal May 28 2014) +

Eagle Oil amp Gas Co v Travelers Property Casualty Co of America No 712-cv-00133-O (ND Tex July 2014 jury verdict Aug 2014 final judgment Aug 2014 mot for new trial amp renewed mot for JMOL amp reconsideration of partial summ j rulings Sept 2014) +

Warren Drilling Co Inc v Equitable Production Co No 212-cv-00425 (SD 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 affrsquod July 2015) +

St Paul Fire amp Marine Insurance Co v Petroplex Energy Inc No 11-13-00104-CV (Tex Ct App partial summ j for policyholder affrsquod Aug 2015) +


Constitutional Claims

Gas Drilling Awareness Coalition v Powers (MD Pa Apr 2012) +

NRDC v Town of Sanford NY No 313-CV-163 (NDNY filed Feb 2013) (stipulation of dismissal Apr 2013) +

Trail Enterprises Inc dba Wilson Oil Co v City of Houston No 12-0906 (Tex Oct 2013) No 13-1374 (US pet for cert May 2014) (cert denied Oct 2014) +

Pollard v Quinn No __ (Ill Cir Ct filed Oct 17 2014) +

Gawenis v Arkansas Oil amp Gas Commission No CV-14-648 (Ark opinion May 2015) +

Kerns v Chesapeake Exploration LLC No 115-cv-346 (ND Ohio filed Feb 2015) (second am compl filed Apr 2015) (dismissed Sept 2015) +

Lang v Town of Tusten NY No 14-cv-4136 (SDNY decision on mot to dismiss Aug 2015) +


Other Disputes


Antitrust

Cherry Canyon Resources LP v Halliburton No 213-cv-00238 (SD Tex filed July 2013) +

Star Insurance Company v Bear Productions Inc No CIV-12-149-RAW (ED Okla summ j for plaintiff Oct 2013) +

Ginardi v Frontier Gas Services LLC

Name and Date Description

Ginardi v Frontier Gas Services LLC No 11-CV-0420 (ED Ark filed May 17 2011)

Plaintiffs filed a class action on behalf of all residents within one mile of any natural gas compressor or transmission station owned by defendants The complaint alleges that defendantsrsquo operations pollute nearby groundwater and soil The complaint alleges causes of action for strict liability nuisance trespass and negligence

Ginardi v Frontier Gas Services LLC No 11-CV-0420

(ED Ark Apr 19 2012)

The court denied plaintiffsrsquo motion for class certification

Tucker v Southwestern Energy Co

Berry v Southwestern Energy Co


Tucker v Southwestern Energy Co 11-CV-0044 (ED Ark filed May 17

2011) Berry v Southwestern Energy Co 11-

CV-0045 (ED 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 (ED Ark Feb 17 2012)

Berry v Southwestern Energy Co 11-CV-0045 (ED Ark Feb 17 2012)

The court granted the defendantsrsquo 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 (ED Ark Aug 29 2012)

Berry v Southwestern Energy Co 11-CV-0045 (ED 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


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 defendantrsquos motion to dismiss holding that it lacked jurisdiction over plaintiffsrsquo 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 plaintiffsrsquo 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


Co Dist Ct May 9 2012)

The court granted the defendantsrsquo 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 ldquoLone Pine orderrdquo 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 ldquoso substantial as to effectively overrulerdquo 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


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)

The Colorado Supreme Court granted the certiorari petition

Antero Resources Corp v Strudley No 13SC576 (Colo Apr

20 2015)

The Colorado Supreme Court held that Coloradorsquos 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 somdashknown as Lone Pine ordersmdashwould 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


Baker v Anschutz Exploration Corp No 11-CV-6119

(WDNY 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 plaintiffsrsquo wells and groundwater and toxic sediments and industrial waste were discharged into the soil and water near plaintiffsrsquo 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 11-1168 (Sup Ct Chemung Co filed Feb 11 2011)) before being removed to federal court


(WDNY June 14 2013)

The court ldquoso orderedrdquo a stipulation and order between plaintiffs and defendant Conrad Geoscience Corp dismissing all claims against Conrad with prejudice


(WDNY June 27 2013)

The court denied defendantsrsquo motion to strike plaintiffsrsquo expert reports for failure to comply with the courtrsquos Lone Pine order which had required plaintiffs to present certain prima facie evidence to support their claims Though conceding that the expert reports were ldquofar from models of clarityrdquo the court rejected defendantsrsquo contention that the reports failed to comply with the courtrsquos 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 plaintiffsrsquo 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


Maring v Nalbone Index No K12009001499 (NY 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 $250000

Berish v Southwestern Energy Production Co


Berish v Southwestern Energy Production Co 10-CV-1981 (MD 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 plaintiffsrsquo wells caused them to become contaminated The complaint also alleges that the companiesrsquo natural gas well was improperly cased allowing contaminants to migrate to plaintiffsrsquo 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-CV-1981 (MD 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 defendantrsquos actions met this standard

Berish v Southwestern Energy Production Co 10-CV-1981 (MD 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


Dillon v Antero Resources 11-CV-1038 (WD Pa filed

Aug 11 2011) Beca v Antero Resources 11-CV-1040 (WD

Pa filed Aug 12 2011)

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 plaintiffsrsquo 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 amp Gas Corp


Fiorentino v Cabot Oil amp Gas Corp No 09-CV-2284 (MD

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 plaintiffsrsquo 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)


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


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




Ely v Cabot Oil amp Gas Corp No 09-CV-2284 (MD Pa order on motion for summary judgment

Apr 23 2014 report and recommendation Jan 9 2014)

The court granted summary judgment to defendants on plaintiffsrsquo strict liability claims The court adopted in full the magistrate judgersquos report and recommendation which found that plaintiffs had failed to ldquosubstantiate 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 liabilityrdquo 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 amp Gas Corp No 09-CV-2284 (MD Pa May 22

2014)

The magistrate judge issued a report and recommendation that recommended granting defendantsrsquo motion to sanction plaintiffsrsquo 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 plaintiffsrsquo court filings that indicated that the lawyer had drafted the documents The magistrate judge noted that many courts have found ghostwriting to be a ldquosurreptitious practice hellip antithetical to the duty of candor owed to a tribunalrdquo and that ldquo[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 statusrdquo 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 attorneyrsquos ghostwriting Instead the magistrate judge said that given the unique factual context the attorneyrsquos conduct ldquofell short of the standards of candorrdquo 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 lawyerrsquos defense expenses




Ely v Cabot Oil amp Gas Corp No 309-CV-2284 (MD 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 judgersquos report and recommendation that the ghostwritten submissions should not be struck from the record and that given the ldquoevolvingrdquo rules of ethics regarding ghostwriting the court would not ground its sanctions order on the attorneyrsquos ghostwriting of submissions Instead the court cited the attorneyrsquos ldquounprofessional and dishonest behavior towards the Court and her adversariesrdquo and in particular her ldquoknowingly false statementsrdquo to the court that the plaintiffs were pro se The court said her statements ldquonot only violate the duty of candor but they are breathtakingly brazen and cannot be lightly excusedrdquo The court declined to impose sanctions on a more junior attorney who had ldquominimal contact with the matterrdquo The court however also declined to follow the magistrate judgersquos recommendation that the more senior attorney be required to pay the junior attorneyrsquos legal fees The court said the junior attorney ldquoshould have had the wherewithal to understand that she was being led down a perilous roadrdquo and that she would have to bear the legal costs ldquoas the wages of her improvident associationrdquo with the more senior lawyer The court ordered the senior attorney to complete five hours of ethics-based continuing legal education The senior attorney filed a notice of appeal on August 1 2014




Ely v Cabot Oil amp Gas Corp No 309-CV-2284 (MD Pa order July

22 2014 report amp recommendation Mar 6 2014)

The court granted defendantsrsquo 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 ldquoalthough extensiverdquo had not produced probative evidence of ground contamination at the Estatersquos 183-acre property and that ldquo[n]early the entire thrustrdquo of the plaintiffsrsquo 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






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 ldquoprimary thrustrdquo of the Hubertsrsquo claims was that defendantsrsquo 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 amp Gas Corp No 309-cv-02284 (MD Pa July 24

2015)

The court denied the remaining plaintiffsrsquo motion to amend their complaint to add the words ldquoinconvenience and discomfortrdquo 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 ldquoembodiedrdquo within the plaintiffsrsquo claims for damages related to their ldquouse and enjoymentrdquo of property and ldquoloss of quality of liferdquo on their property

Ely v Cabot Oil amp Gas Corp No 309-cv-02284 (MD Pa Oct 21

2015)

On October 21 the court issued an order clarifying its denial in July 2015 of the plaintiffsrsquo motion to add the words ldquoinconvenience and discomfortrdquo to the ad damnum clause of their complaint The court noted that the plaintiffsrsquo 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 ldquoinconvenience and discomfortrdquo 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 plaintiffsrsquo testimony





2015

The court granted in part the plaintiffsrsquo 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 witnessrsquos testimony ldquocame into sharp focus late in this litigationrdquo due to a decision by the defense to raise an affirmative defense of failure to mitigate based on plaintiffsrsquo failure to accept water systems described by the expert in a report The plaintiffs asserted that the defensersquos other witnesses were unable to provide information about data relating to these water treatment systems The court was not persuaded by the defendantrsquos 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 expertrsquos 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 ldquoon this unique constellation of factsrdquo the plaintiffs should be allowed a ldquonarrow and limited opportunityrdquo to take discovery from the expert regarding his ldquoopinions and related factual knowledge that helped form the basis for the opinions being offered by the defendantrsquos remaining experts with respect to water safetyrdquo A trial is scheduled to begin on February 22 2016

Armstrong v Chesapeake Appalachia LLC


Armstrong v Chesapeake Appalachia LLC (Pa Ct Com

Pl filed Oct 27 2010)

A plaintiff filed a lawsuit in Bradford County Pennsylvania which was removed to federal court (Armstrong v Chesapeake Appalachia LLC No 10-0680 (MD 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 companyrsquos drilling practices caused methane ethane barium and other substances to contaminate plaintiffrsquos 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


Zimmerman v Atlas America LLC No 2009-7564 (Pa Ct

Com Pl filed Sept 21 2009)

Plaintiffs allege that defendant company used toxic chemicals during fracking on their property which 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 LP Name and Date Description

Harris v Devon Energy Prod Co LP 10-CV-0708 (ND Tex filed Dec 15 2010) (transferred to ED 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 LP 10-CV-0708 (ED Tex July 13 2011)

Adopting the magistrate judgersquos 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 defendantrsquos representative regarding the lack of a connection between substances found in plaintiffsrsquo well water and defendantrsquos drilling activities the need for a new well and defendantrsquos intent to pay for the new well

Harris v Devon Energy Prod Co LP 10-CV-0708 (ED 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 judgersquos Report and Recommendation and granted plaintiffsrsquo motion

Harris v Devon Energy Prod Co LP 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 defendantrsquos 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 ndashwhich was sufficient to cause plain legal prejudice to defendant

Mitchell v EnCana Oil amp Gas Inc


Mitchell v EnCana Oil amp Gas Inc No 10-CV-2555 (ND Tex filed Dec 15 2010)

An individual filed a complaint against defendant company alleging that the companyrsquos fracking activities and storage of drilling wastes contaminated plaintiffrsquos wells The complaint alleged causes of action for nuisance trespass negligence fraud and strict liability

Mitchell v EnCana Oil amp Gas Inc No 10-CV-2555 (ND Tex

Nov 14 2011)

Case was voluntarily dismissed after settlement

Scoma v Chesapeake Energy Corp


Scoma v Chesapeake Energy Corp No 10-CV-1385 (ND

Tex filed July 15 2010)

Landowners in Johnson County Texas brought an action against several related companies alleging that the companies stored drilling waste at sites and disposal wells near plaintiffsrsquo property and that their well water become contaminated as a result of the companiesrsquo fracking and disposal activities The complaint includes causes of action for negligence nuisance and trespass


Tex Dec 9 2011)

Case was voluntarily dismissed with prejudice after settlement

Heinkel-Wolfe v Williams Production Co LLC


Heinkel-Wolfe v Williams Production Co LLC No 10-40355-362 (362nd Dist Ct

Denton Co Texas filed Nov 3 2010)

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

Parr v Aruba Petroleum Inc


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 $2925 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 familyrsquos home The jury found Aruba liable for private nuisance The verdict included $2 million for past physical pain and suffering $250000 for future physical pain and suffering $400000 for past mental anguish and $275000 for loss of market value on the familyrsquos 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 Arubarsquos 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 plaintiffsrsquo injuries




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 Arubarsquos motion for a new trial

Sizelove v Williams Production Co LLC


Sizelove v Williams Production Co LLC No 10-50355-367 (367th Dist Ct

Denton Co Tex filed Nov 3 2010)

Members of a family filed a lawsuit in Denton County Texas alleging that defendant companyrsquos 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


Hagy v Equitable Production Co No 10-CV-1372 (SD 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 plaintiffsrsquo property and water well which was within 1000 feet from defendant companyrsquos gas wells became contaminated as a result of defendantrsquos 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 (SD 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 No 12-1926 (4th Cir Oct 8

2013)

The Fourth Circuit affirmed the decision of the district court granting summary judgment to defendants on plaintiffsrsquo trespass and negligence claims The Fourth Circuit found no error in the district courtrsquos 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


Center for Biological Diversity v BLM No 11-CV-6174 (ND Cal filed Dec

8 2011)

Several environmental groups filed a lawsuit challenging the federal governmentrsquos leasing of nearly 2700 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 (ND Cal Mar 31

2013)

The court granted plaintiffsrsquo 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 ldquoreasonably close causal relationshiprdquo 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 plaintiffsrsquo motion for summary judgment as to the MLA claims

continued on next page



Center for Biological Diversity v Bureau of Land Management No 11-cv-06174 (ND Cal joint status

report Oct 16 2014 order granting joint mot to stay July 17 2014)

The US Bureau of Land Management and the Center for Biological Diversity and Sierra Club filed a joint status report in the environmental organizationsrsquo lawsuit challenging BLMrsquos 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 Pennsylvaniarsquos Future v Ultra Resources Inc



(MD Penn filed July 21 2011)

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 Pennsylvaniarsquos State Implementation Plan and its New Source Review regulations

In re US Energy Development Corp


In re US 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 $187500 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 companyrsquos failure to comply with two previous consent orders in August and November 2010

United States v Range Prod Co


United States v Range Prod Co 11-CV-0116 (ND 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 ldquomay present an imminent and substantial endangerment to the health of personsrdquo and determined that two wells were affected by the companyrsquos 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


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 US Supreme Courtrsquos decision in Sackett v EPA which held that administrative orders are subject to pre-enforcement review

Matter of Wallach v Town of Dryden


Anschutz Exploration Corp v Town of Dryden (NY 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 sect 23-0303(2)) which regulates the development and production of oil and gas in the state


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 Deprsquot May 2

2013)

The Third Department affirmed holding that the OGSML neither expressly nor impliedly preempted the Townrsquos 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

(NY Aug 29 2013)

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

Matter of Wallach v Town of Dryden No 130 (NY 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 Statersquos 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 ldquoone of the core powers of local governancerdquo and that the court did not ldquolightly presume preemption where the preeminent power of a locality to regulate land use is at stakerdquo 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 ordinancesrsquo 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




Matter of Wallach v Town of Dryden Mot No 2014-867 (NY

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 ldquopersuasive precedentrdquo from the Colorado Supreme Court to the question of conflict preemption under a Colorado state law similar to New Yorkrsquos 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


Matter of Cooperstown Holstein Corp v Town of Middlefield (NY 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 sect 23-0303(2))

Matter of Cooperstown Holstein Corp v Town of Middlefield (NY Sup Ct Otsego Co Feb 24 2012)

A state trial court upheld the Townrsquos 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

Deprsquot May 2 2013)

For the reasons articulated in Norse Energy Corp USA v Town of Dryden the Third Department affirmed the court belowrsquos judgment declaring the zoning law valid

Matter of Cooperstown Holstein Corp v Town of Middlefield No

131 (NY 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 Statersquos 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 ldquoone of the core powers of local governancerdquo and that the court did not ldquolightly presume preemption where the preeminent power of a locality to regulate land use is at stakerdquo 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 ordinancesrsquo 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


Northeast Natural Energy LLC v City of Morgantown West

Virginia Civil Action No 11-C-411 (Cir Ct W Va Aug 12

2011)

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


Weiden Lake Property Owners v Klansky (NY Sup

Ct Sullivan Co Aug 18 2011)

The owner of land that had signed a lease with a mining company was sued by a property owners 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


State of New York v United States Army Corps of

Engineers 11-CV-2599 (EDNY 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 US Army Corps of Engineers prepares a draft environmental impact statement pursuant to the National Environmental Policy Act


Engineers (EDNY Sept 24 2012)

The district court granted defendantsrsquo motion to dismiss holding that the lawsuit was premature given that until the Commissionrsquos 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 US Army Corps of Engineers


Delaware Riverkeeper Network v United States

Army Corps of Engineers 11-CV-3780 (EDNY 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 US Army Corps of Engineers prepares a draft EIS


Army Corps of Engineers 11-3780 (EDNY Sept 24 2012)

The court granted without prejudice defendantsrsquo motion to dismiss for lack of subject matter jurisdiction holding that the lawsuit was premature given that until the Commissionrsquos 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


Alexander v Chesapeake Appalachia LLC 11-CV-0308 (NDNY filed Mar 18 2011)

A large number of plaintiffs sued defendant company concerning gas leases that the company has with the plaintiffs The complaint alleges a violation of New York General Business Law sect 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 ldquofederal state and local lawrdquo The plaintiffs seek a declaratory judgment as well as compensatory damages

Alexander v Chesapeake Appalachia LLC 11-CV-0308

(NDNY March 20 2012)

The court granted the defendant companyrsquos 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


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


Coastal Oil and Gas Corp v Garza Energy Trust 268

SW3d 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 ldquorule of capturerdquo 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


Wiser v Enervest Operating LLC 10-CV-00794 (NDNY 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 Patersonrsquos 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 companyrsquos failure to do so rendered the leases null and void

Independent Petroleum Association of America v EPA



No 10-1233 (DC 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 EPArsquos website that injection wells that use diesel fuel as a hydraulic fracturing additive ldquowill be considered Class II wellsrdquo by the agencyrsquos 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 (DC 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


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 Commissionrsquos approval of a proposal to build a 39-mile pipeline that would transport gas from Pennsylvaniarsquos 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


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 amp Production Co v City of Culver City


Plains Exploration amp Production Co v City of

Culver City (LA Co Super Ct March 26 2010)

Plains Exploration amp Production Company sought a writ of mandate invaliding Culver Cityrsquos 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 residentsrsquo 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


Smith v Devon Energy Production Co No 11-CV-

0196 (ND 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


0196 (ND Tex Mar 4 2011)

The case was transferred to the federal district court for the Eastern District of Texas


0104 (ED Tex July 2 2012)

The court granted plaintiffsrsquo motion for dismissal without prejudice

Summit Petroleum Corp v EPA


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 EPArsquos 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 ldquomajor sourcerdquo under the Clean Air Act The petition alleges that EPArsquos determination was arbitrary and capricious

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

The 7th Circuit vacated EPArsquos determinations holding that it is contrary to the plain meaning of ldquoadjacentrdquo The court remanded the matter to EPA with instructions that the agency must reassess whether the companyrsquos operations are close enough to be considered adjacent

Group Against Smog and Pollution v Commonwealth of

Pennsylvania


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 Actrsquos 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 facilityrsquos potential to emit

Clean Air Council v Commonwealth of Pennsylvania


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 DEPrsquos 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 companyrsquos units that included other gas compressor stations

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 ownerrsquos deed which stated that ldquomineralrdquo 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 deedrsquos 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 courtrsquos decision and reinstated the order of the trial court Citing the Dunham Rule (derived from Dunham amp 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 amp Farmers Club Inc v Chesapeake Exploration

LLC


Jewett Sportsmen amp Farmers Club Inc v Chesapeake

Exploration LLC (Harrison Co Ohio Ct of Common Pleas Jan

17 2012)

Two oil and gas companies were successors-in-interest 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


Katzin v Central Appalachia Petroleum LLC (Pa Super Ct

Jan 19 2012)

A state trial court held that a standard royalty provision in an oil and gas lease complied with Pennsylvaniarsquos Minimum Royalty Act even though the provision did not specify what post-production costs may be deducted from the lessorrsquos royalty payments

Duck Creek Energy Inc v OrsquoDell


Duck Creek Energy Inc v OrsquoDell (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 ldquofracking fluidsrdquo 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


Aukema v Chesapeake Appalachia LLC 11-CV-489 (NDNY March 21 2012)

Plaintiffs owners of over 10000 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 Yorkrsquos multiple year moratorium on hydraulic fracking constituted unforeseen events that triggered the leasesrsquo 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

(NDNY Nov 15 2012)

The court ruled that the Statersquos 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 12-5108 (2d Cir Sept 12 2013)

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 13000 acres

Powder River Basin Resource Council v Wyoming Oil and Gas

Conservation Commission


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 Wyomingrsquos 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 statersquos Public Records Act by denying their request for documents submitted to the Commission by several oil and gas companies


Conservation Commission (Wyo Dist Ct Mar 21 2013)

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


Conservation Commission No S-13-0120 (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 amp Gas

Conservation Commission No S-13-0120 (Wyo Mar 12 2014)

The Wyoming Supreme Court reversed the district courtrsquos 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 Supervisorrsquos 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 ldquoprocedural flawsrdquo in the case the Supreme Court decided in the interests of judicial economy not ldquoto cast the district court adrift without some guidance on the standard to be applied in trade secret cases under the WPRArdquo 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 ldquotrade secretrdquo used by federal courts under FOIA ldquoa 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 effortrdquo In addition there must be ldquoa direct relationship between the trade secret and the productive processrdquo 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 ldquorender meaninglessrdquo WRPArsquos exemption for ldquoconfidential commercial informationrdquo 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 ldquoto review the disputed information on a case-by-case record-by-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 eachrdquo

Koonce v Chesapeake Exploration LLC


Koonce v Chesapeake Exploration LLC 12-CV-0736 (ND 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 rightsrsquo true potential The plaintiffs are seeking a declaratory judgment voiding the leases

Robinson Township v Pennsylvania


Robinson Township v Pennsylvania 284-MD-2012

(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


(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



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


(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 Dept 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


(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


Robinson Township v Pennsylvania Nos 63 64 72 amp 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 amendmentmdashknown as Act 13mdashto Pennsylvaniarsquos Oil and Gas Act Among other things Act 13 restricted local government regulation of hydraulic fracturing in their jurisdictions The pluralityrsquos 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 legislaturersquos 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 ldquoindustrial exploitation of Pennsylvaniarsquos coalfieldsrdquo which formed the backdrop and impetus for the passage and ratification of the Environmental Rights Amendment in 1971 The court also reversed the Commonwealth Courtrsquos ruling that certain petitioners including a doctor who challenged Act 13rsquos 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 ldquopioneering opinionrdquo 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 Saylorrsquos dissent emphasized the position that the Environmental Rights Amendment conferred obligations on the ldquoCommonwealthrdquo and that municipalities did not obtain ldquoa vested entitlement in their delegated authority to manage land use or the right to dictate the manner in which the General Assembly administers the Commonwealths fiduciary obligation to the citizenry at large relative to the environmentrdquo He questioned what he viewed as the pluralityrsquos granting of standing to municipalities to vindicate individual rights Justice Eakin joined Justice Saylorrsquos dissent but also authored his own expressing ldquosignificant concernrdquo about ldquothe alchemy that recognizes in municipalities the ability to enforce individual constitutional rightsrdquo




Robinson Township v Pennsylvania Nos 63 64 72 amp 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


On January 21 2014 the Pennsylvania Supreme Court affirmed the Commonwealth Courtrsquos 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 ldquocorrectness of governmental conductrdquo which did not supply a basis for standing The standard for legislator standing requires that the power or authority of the legislatorsrsquo offices or the ldquopotency of their right to voterdquo be at stake

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

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




Robinson Township v Commonwealth of

Pennsylvania No 284 MD 2012 (Pa Commw Ct July 17 2014)

On remand from the Pennsylvania Supreme Courtrsquos 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 13rsquos 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 Courtrsquos 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 courtrsquos conclusion that PUCrsquos jurisdiction over the review of local ordinances was no longer viable he believed that because Act 13rsquos provisions regulating the ldquohowrdquo of drilling were still effective its provisions regarding PUCrsquos jurisdiction still had ldquoefficacyrdquo Another judge dissented from the courtrsquos holdings regarding health professionalsrsquo obligations and spill notification requirements PUC filed a notice of appeal in August 2014




Robinson Township v Pennsylvania Nos 63 64 72 amp

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 amp Gas Associationrsquos (PIOGArsquos) application to intervene to enforce the Supreme Courtrsquos 2013 decision in Robinson Township v Pennsylvania which declared portions of Act 13mdashwhich amended Pennsylvaniarsquos Oil and Gas Actmdashunconstitutional 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 wellrsquos 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 PIOGArsquos application without comment

Sierra Club v Ohio Dept 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 US Forest Service


Ozark Society v US Forest Service (ED Ark March 23

2012)

An environmental group moved for a preliminary injunction against the US 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


Managan v Landmark 4 LLC (ND Ohio filed March 12

2012) Boggs v Landmark 4 LLC (ND 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 (ND Ohio Aug 13 2012)

Defendant moved to dismiss for failure to join a required partymdashthe company that performed the drilling activities The court denied this motion but granted the motion to dismiss plaintiffrsquos claims for intentional fraudulent concealment

Minerals Development amp Supply Co v Hunton amp Williams LLP


Minerals Development amp Supply Co v Hunton amp

Williams LLP (7th Cir April 23 2012)

The Seventh Circuit overturned the dismissal of a hydraulic fracturing sand supplierrsquos 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


Gas Drilling Awareness Coalition v Powers (MD Pa

April 16 2012)

An anti-hydraulic fracturing coalition filed a lawsuit in Pennsylvania federal court in 2010 alleging that the statersquos former director of the state Emergency Management Agencyrsquos Office of Homeland Security violated the grouprsquos 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


Kamuck v Shell Energy Holdings GP LLC (MD

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 plaintiffrsquos strict liability and private nuisance claims not be dismissed The district court agreed although it did dismiss plaintiffrsquos claim that Shell drilled the shall in breach of its lease


Pa Sept 5 2012)

The court denied defendantsrsquo 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

411-CV-1425 (MD 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 Shellrsquos 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 ldquoessentially boycottedrdquo his own litigation and had not complied with discovery demands or court orders Given the landownerrsquos ldquodilatory behaviorrdquo 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


Clean Water Action v Municipal Authority of

McKeesport (WD 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


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


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 Rangersquos 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 plaintiffsrsquo 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 plaintiffsrsquo well


Co June 2012)

In June 2012 the trial court denied plaintiffsrsquo motion to dismiss Rangersquos counterclaims as barred by the Texas Citizensrsquo Participation Act an anti-SLAPP (Strategic Lawsuit Against Public Participation) statute

Lipsky v Range Production Corp No No 02ndash12ndash00098ndashCV (Tex Ct App

Fort Worth Aug 23 2012)

In August 2012 the court of appeals dismissed plaintiffsrsquo 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 plaintiffsrsquo request that the appeal be converted to an original proceeding seeking a writ of mandamus




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 Rangersquos counterclaims against landowner plaintiffs and an environmental consultant (relators) as in violation of Texasrsquos anti-SLAPP (Strategic Lawsuits Against Public Participation) statute the court of appeals determined that relators had met their initial burden of establishing that Rangersquos counterclaims were based on relatorsrsquo 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 ldquoaiding and abettingrdquo 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)

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 ldquoby clear and specific evidence a prima facie case for each essential element of the claim in questionrdquo

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

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 Texasrsquos anti-SLAPP (strategic lawsuit against public participation) statute The TCPA requires plaintiffs to establish ldquoby clear and specific evidence a prima facie case for each essential element of the claim in questionrdquo 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 landownerrsquos wife and an environmental consultant

Andre v EXCO Resources Inc


Andre v EXCO Resources Inc (WD La filed April 15 2011)

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 plaintiffsrsquo drinking well as a result of natural gas drilling and the blowout

Beckman v EXCO Resources Inc


Beckman v EXCO Resources Inc (WD 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 plaintiffsrsquo drinking well as a result

Kalp v WPX Energy Appalachia LLC


Kalp v WPX Energy Appalachia LLC (WD Pa

filed May 16 2012)

Plaintiffs filed a breach of contract lawsuit against WPX Energy Appalachia seeking to halt the companys efforts to build a 27-acre Marcellus shale drilling pad on the familys 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


McRoberts v Chesapeake Energy Corp (WD 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


Hearn v BHP Billiton Petroleum (Arkansas) Inc 11-CV-0474 (ED 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


In re Chesapeake Appalachia LLC (NYS Attorney General

signed June 12 2012)

A subsidiary of an Oklahoma-based energy company entered into an agreement with the New York State Attorney Generalrsquos office to allow landowners in upstate New York to renegotiate thousands of natural gas leases The company also agreed to pay $250000 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 Dept of Envtl Conservation completed its review of hydraulic fracturing

Sierra Club v Village of Painted Post


Sierra Club v Village of Painted Post (NY 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 15 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


In re Bear Lake Properties LLC (EPA Envtl Appeals Bd June

28 2012)

The EPA Environmental Appeals Board found that EPArsquos 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 amp Resources LLC v Cecil Township



(Pa Commonwealth Ct filed June 29 2012)

A company claiming irreparable financial damage sued a Pennsylvania town concerning the townrsquos 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



(EPA consent order entered July 3 2012)

An energy company has agreed to pay a $62457 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 companyrsquos facilities

Rodriguez v Abruzzo


Rodriguez v Krancer 12-CV-01458 (MD 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 (MD Pa Oct

23 2013)

The court granted defendantsrsquo motion to dismiss on the ground that the doctor lacked standing The court ruled that plaintiffrsquos alleged injury was ldquotoo conjecturalrdquo to satisfy Article IIIrsquos 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 ldquowell founded or reasonable fear of prosecutionrdquo or that he had incurred economic losses due to Act 13rsquos requirements The court ruled moreover that plaintiff appeared to lack prudential standing to mount an overbreadth challenge to the statute Plaintiffrsquos attorney has indicated that he will appeal the decision

Rodriguez v Krancer 12-CV-01458 (MD Pa Jan

10 2014)

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


Rodriguez v Abruzzo


Rodriguez v Abruzzo No 312-cv-1458 (MD Pa June 30 2014)

The federal district court for the Middle District of Pennsylvania dismissed the physicianrsquos claims The court ruledmdashas it had in an October 2013 decision (after which it allowed the physician to amend his complaint)mdashthat the doctor did not have standing The court said that the doctorrsquos 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 ldquofactually unsubstantiatedrdquo

Colorado Oil and Gas Conservation Commission v City of Longmont


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 Longmontrsquos 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 Commissionrsquos comprehensive regulatory process

Colorado Oil amp 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 COGCCrsquos lawsuit challenging Longmontrsquos 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 Dept of Envtl Protection v Legere


Pa Dept of Envtl Protection v Legere


A Pennsylvania state court held that the statersquos 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 statersquos 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 DEPrsquos 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



(ND 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 plaintiffrsquos 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


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 judgersquos 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 ldquocommon carrierrdquo mdash 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 US Forest Service



(WD Pa Sept 7 2012)

A federal district court in Pennsylvania held that the US 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 US 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 Circuitrsquos 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 plaintiffsrsquo likelihood of success on the merits but had ldquodecisively resolvedrdquo the legal claims

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 (US Oct 7 2013)

The US Supreme Court denied two petitions for writs of certiorari

Jeffrey v Ryan


Jeffrey v Ryan (NY 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 Dept of Envtl Protection



(NY Sup Ct Albany Co filed Sept 17 2012)

A Washington DC-based environmental group filed a lawsuit against New York seeking documents concerning the oil and gas industryrsquos efforts to influence the statersquos 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 statersquos Freedom of Information Law However the lawsuit alleges that the governor provided only a very limited number of records

Hiser v XTO Energy Inc


Hiser v XTO Energy Inc (ED 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 411-cv-00517-KGB (ED Ark

Sept 30 2013)

After a jury verdict in favor of plaintiff ($100000 in compensatory damages $200000 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 ldquocomplained early and oftenrdquo 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 juryrsquos extra-record discussion of fracking Jurors had apparently discussed fracking and had sent the court a note asking ldquoWere they drilling only or were they also frackingrdquo Defendant contended that the discussions of fracking were prejudicial because of the negative attention fracking had received in the press and other media




Hiser v XTO Energy Inc No 13-3443 (8th Cir Oct 3 2014)

The Eighth Circuit Court of Appeals affirmed a district courtrsquos denial of a motion for a new trial in a case where a jury awarded an Arkansas homeowner $300000 for damages caused to her home by vibrations from drilling The Eighth Circuit rejected defendantrsquos argument that a new trial was warranted because a juror brought extraneous prejudicial information about hydraulic fracturing to the juryrsquos attention during its deliberations The jury had not heard any evidence about fracking but asked the court during deliberations ldquoWere they drilling only or were they also frackingrdquo 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 courtrsquos instruction eliminated any risk of prejudice noting that fracking had not been discussed again after the courtrsquos 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



No 12-1405 (DC Cir filed Oct 15 2012)

Nine petitions were filed by environmental groups industry associations and the state of Texas challenging EPArsquos air pollution standards for certain oil and gas operations including gas wells EPArsquos 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 (DC Cir Jan 17

2013)

In a clerkrsquos order the court granted the Texas petitionersrsquo motion for voluntary dismissal The Texas petitioners had informed the court that they believed that ldquothe issues in this case more directly affect the industry petitioners and can be fully and adequately addressed by themrdquo


No 12-1405 (DC Cir Apr 3 2013)

In a clerkrsquos order the court granted EPArsquos 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 Dept of Cons


Center for Biological Diversity v Cal Dept 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 Deprsquot 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 4mdashthe California hydraulic fracturing law passed in 2013 after the commencement of the lawsuitmdashand 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



(ND 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 companyrsquos 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



No 13-CV-1749 (ND 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 18000 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 (ND 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 11-cv-06174 (ND Cal)

Harnas v Gas Field Specialists Inc



Index No 2009-2827 (NY 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 plaintiffsrsquo property


No 609-cv-06629-CJS-MWP (WDNY 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 negligencewillful wanton and reckless misconduct deliberate intent pursuant to West Virginia Code sect 23-4-2(c) (Workersrsquo Compensation Act) alter ego agency strict liabilityultrahazardous activity preparation and use of proprietary chemical fracking fluids wrongful interference with employmentwrongful interference with protected property interests and punitive damages

Bombardiere v Schlumberger Tech CorpNo 11-cv-00050 (ND W Va Apr 14 2011)

Defendants removed the action based on diversity jurisdiction

Bombardiere v Schlumberger Tech Corp No 11-cv-00050

(ND W Va Jan 16 2013)

The court ldquoso orderedrdquo a stipulation and order dismissing Consol Energy Inc and CNX Gas Corp from the case and withdrawing plaintiffrsquos alter ego claim against CNX Gas Co LLC (CNX Gas Co)


(ND W Va Jan 30 2013)

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 SOSrsquos 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



(ND W Va Jan 31 2013)

The court granted in part the motion for summary judgment of Schlumberger The court ruled that Schlumberger was a ldquospecial employerrdquo under the Workersrsquo 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


(ND 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 ldquopeculiar risk exceptionrdquo to the rule that landowners who employ independent contractors are exempt from liability for injuries to the contractorsrsquo 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




(ND W Va Feb 21 2013)

The court granted SOSrsquos 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


(ND 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


Lenape Resources Inc v Town of AvonNo 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 Plaintiffrsquos principal contention was that the moratorium was expressly preempted by New Yorkrsquos Oil Gas and Solution Mining Law (OGSML) Citing the New York Court of Appeals precedent (but writing that ldquo[i]n this Courtrsquos view the Court of Appealsrsquo decision in Frew Run is flawedrdquo) 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 Divisionrsquos Fourth Department

Lenape Resources Inc v Town of Avon No 14-00102 (NY 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 ldquosignificant or important questions not previously passed on ie substantial and novel issuesrdquo 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



Index No 2013-602 (NY Sup Ct Delaware Co filed June

12 2013)

Petitioners challenge the Town of Sidneyrsquos 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 complaintrsquos claims draw from the decision in Jeffrey v Ryan (NY Sup Ct Binghamton Co Oct 2 2012) that struck down a drilling moratorium in the City of Binghamton

Scoggin v Cudd Pumping Services Inc



No 11-CV-00678 (ED 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 ldquonoxious and poisonous carcinogenic matter and compoundsrdquo as a result of their homersquos 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


No 11-CV-00678 (ED Ark June 10 2013)

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

Ctr for Biological Diversity v Cal Dept 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 Californiarsquos underground injection control program and in violation of DOGGRrsquos 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 amp Gas Corp Name and Date Description

Roth v Cabot Oil amp 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 defendantsrsquo activities caused personal injuries and property damage

Roth v Cabot Oil amp Gas Corp No 12-CV-00898 (MD Pa

May 14 2012)

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


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


Oct 15 2012)

The court denied defendantsrsquo 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



No 2010-3954 (Pa Ct Com Pl Mar 20 2013)

Plaintiffs filed this lawsuit without a complaint in 2010 They asserted that defendant energy companiesrsquo drilling operations resulted in contamination to their property Plaintiffs also asserted that the Pennsylvania Department of Environmental Protection failed to enforce the statersquos laws against defendants thereby violating plaintiffsrsquo 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 companiesrsquo motion to seal the record in the case Two newspapers sought to intervene and unseal the record The court denied the newspapersrsquo requests to intervene as untimely but on appeal the Pennsylvania Superior Court remanded the newspapersrsquo 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 defendantsrsquo 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



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


No 11-8071 (10th Cir Mar 12 2013)

The Tenth Circuit dismissed the plaintiffsrsquo appeal on the jurisdictional ground that the district courtrsquos June 2011 decision and order was not a ldquofinal decisionrdquo because the court had remanded the matter back to the agency for further action

Magers v Chesapeake Appalachia LLC



No 512-cv-49 (ND WVa Apr 10 2013)

Plaintiffs alleged that defendantsrsquo gas drilling and storage activities on property adjacent to plaintiffsrsquo 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 statementmdashand instructed plaintiffs to include more ldquosuccinct allegationsrdquo against the individual defendants outlining their individual contributions to the alleged injury

Magers v Chesapeake Appalachia LLC No 512-cv-49 (ND 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 CNXrsquos 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 512-cv-49 (ND W Va Dec

6 2013)

In December 2013 the court denied plaintiffsrsquo 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 512-cv-49 (ND W Va Sept

2 2014)

The federal district court for the Northern District of West Virginia granted summary judgment to Columbia Gas Transmission LLC (Columbia) in a lawsuit alleging that Columbiarsquos gas storage field caused methane contamination in plaintiffrsquos 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 plaintiffsrsquo well The court noted that plaintiffs had not provided any evidence to counter defendantrsquos expertrsquos finding that the gas in their well was biogenic

Heavens v Pa Deprsquot 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 PADEPrsquos 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 Halcoacuten Energy Properties Inc



No 13-cv-00360 (WD 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 Halcoacuten Energy Properties Inc (Halcoacuten ) under the courtrsquos diversity jurisdiction which they voluntarily dismissed after Halcon indicated it would join two Pennsylvania companies After plaintiffs reinitiated their lawsuit in Pennsylvania state court Halcoacuten 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 ldquohome state exceptionrdquo applied because plaintiffs had established that at least two-thirds of the plaintiffs and the ldquoprimary defendantsrdquo (which did not include Halcoacuten) were Pennsylvania citizens


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 ldquoother class actionrdquo filed in the past three years (ie plaintiffsrsquo earlier federal action that they voluntarily dismissed) the Third Circuit said that the current action was in effect the same action and that the ldquolocal controversyrdquo exception applied The Third Circuit also ruled that Halcoacuten was a ldquoprimary defendantrdquo and that the ldquohome state exceptionrdquo therefore did not apply The Third Circuit described criteria for determining whether a defendant is a ldquoprimary defendantrdquo including ldquowhether the defendant is the lsquoreal targetrsquo of the plaintiffsrsquo accusations ldquoif the plaintiffs seek to hold the defendant responsible for its own actions as opposed to seeking to have it pay for the actions of othersrdquo and whether the defendant ldquohas potential exposure to a significant portion of the class and would sustain a substantial loss as compared to other defendants if found liablerdquo

Auth v Marco Drilling Inc


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 companyrsquos 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



(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 Cityrsquos permitting requirements for drilling zoning and construction of rights-of-way


(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


2013-Ohio-356 (Ohio Ct App Feb 6 2013)

On appeal the Ohio Court of Appeals reversed finding that the statersquos oil and gas drilling statute conflicted with and thus preempted the local drilling ordinances as well as the Cityrsquos requirements for obtaining zoning certificates for drilling activities The Cityrsquos rights-of-way ordinances were not preempted but could not be enforced ldquoin a way that discriminates against unfairly impedes or obstructs oil and gas activities and operationsrdquo





2013-0465 (Ohio June 19 2013)

The Ohio Supreme Court accepted an appeal for review

State ex rel Morrison v Beck Energy Corp No 2013-0465

(Ohio Feb 17 2015)

The Ohio Supreme Court ruled that the Ohio Constitutionrsquos 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 ldquosole and exclusiverdquo authorityrdquo 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 ldquozoning certificaterdquo 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

US v SG Interests I Ltd


US v SG Interests I Ltd No 12-cv-00395 (D Colo

filed Feb 15 2012)

In a civil antitrust action the US 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 USC sect 1) In 2005 the companiesmdashwhich acquired and developed gas leases in the Ragged Mountain Area in Coloradomdashentered 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

US 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 ldquounrepentant arrogancerdquo 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 ldquoto leave its civil action in such a smirking self-righteous attituderdquo 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 ldquojoint biddingrdquo was a common practice

US 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



No 228 MD 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 Statersquos natural resources in violation of the Statersquos obligation as trustee Pennsylvaniarsquos constitution imposes the duty to ldquoconserve and maintainrdquo Pennsylvaniarsquos public natural resources ldquofor the benefit of all the peoplerdquo including future generations

Pa Envtl Def Found v Commonwealth of Pennsylvania No 228 MD 2012 (Jan 22 2013)

The court overruled the Commonwealthrsquos preliminary objections which challenged the legal sufficiency of the allegations and argued that they presented non-justiciable political questions

Pa Envtl Def Found v Commonwealth of Pennsylvania No 228 MD 2012 (Pa Commw Ct June 5

2014)

After Governor Tom Corbett proposed a budget for Fiscal Year (FY) 2014ndash15 that included $75 million in revenues from ldquonon-surface impact leasingrdquo 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 petitionerrsquos request prior to the completion of the Statersquos FY 2014ndash15 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 2014ndash15 budget




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 ldquobringing their case to support DCNRrsquos ability to protect our Parks and Forests not shut them downrdquo





Pennsylvania 228 MD 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 statersquos 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 constitutionrsquos 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 PEDFrsquos 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



No 13-cv-00047 (D Utah filed Jan 18 2013)

Plaintiffs challenged the federal defendantsrsquo 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


No 13-cv-00047 (D Utah Feb 13 2013)

In February 13 plaintiffs filed a notice of dismissal

Colo Oil amp Gas Assrsquon v Longmont


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 Longmontrsquos ban on hydraulic fracturing and the disposal and storage of waste from hydraulic fracturing The court found that there was an ldquoirreconcilablerdquo operational conflict between the local interest in banning fracking activities and the Statersquos interests in the efficient development and production of oil and gas the prevention of waste and the protection of mineral rights ownersrsquo correlative rights The court declined to find that implied preemption applied in the casemdashwhich would have required a finding that the Statersquos 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 amp bond

order Oct 14 2014)

The Colorado district court granted the Cityrsquos 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 plaintiffsrsquo 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




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 ldquo[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 staterdquo

Montana Env Information Center v BLM


Mont Envtl Info Ctr v BLM No 411-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 60000 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 411-cv-00015 (D Mont June

14 2013)

The court granted defendantsrsquo motion for summary judgment and dismissed the lawsuit on standing grounds finding that plaintiffs had failed to establish injury-in-fact Noting that plaintiffsrsquo recreational and aesthetic interests were ldquouniformly localrdquo and the effects of greenhouse gas emissions ldquodiffuse and unpredictablerdquo the court found that plaintiffs had presented ldquono scientific evidence or recorded scientific observations to support their assertions that BLMrsquos leasing decisions will present a threat of climate change impacts on lands near the lease sitesrdquo The court further held that plaintiffs had made no effort to show that methane emissions from the lease sites would make a ldquomeaningful contributionrdquo to global warming and had thus failed to show that potential climate change impacts to the local environment were ldquofairly traceablerdquo to greenhouse gas emissions associated with the challenged leases

Powder River Basin Resource Council v BLM


Powder River Basin Resource Council v BLMNo 112-cv-

00996 (DDC filed June 19 2012)

Plaintiffs challenged the national Bureau of Land Management (BLM) directorrsquos 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 BLMrsquos 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 BLMrsquos 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 industryrsquos interests

Powder River Basin Resource Council v United States Bureau

of Land Management No 12-cv-00996 (BJR) (DDC Mar 28

2014)

The federal district court for the District of Columbia granted defendantsrsquo 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 US Geological Services study about impacts to water resources

In re Stonehaven Energy Mgmt LLC



UIC Appeal No 12-02 (EAB Mar 28 2013)

Petitioner sought review of EPA Region 3rsquos 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 Stonehavenrsquos 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



UIC App Nos 13-01 amp 13-02 (EAB 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 EPArsquos 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 Deprsquot 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 PADEPrsquos determination provided insufficient information about the sampling data and methodology to support the conclusion

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 defendantsrsquo pooling and unitizing the Marcellus shale formation underlying plaintiffsrsquo property in violation of their lease (2) trespass by engaging in hydraulic fracturing on plaintiffsrsquo property and (3) that the defendants failed to protect plaintiffsrsquo property from drainage


No 512-cv-00102 (ND W Va July 6 2012)

The case was removed to federal court


No 512-cv-00102 (ND W Va Apr 10 2013)

The court denied defendantsrsquo motion for summary judgment The court found that hydraulic fracturing under the land of a neighboring property without that partyrsquos consent is not protected by the ldquorule of capturerdquo but rather constitutes an actionable trespass In reaching this conclusion the court determined that the West Virginia Supreme Court would not adopt the ldquorule of capturerdquo principles ascribed to in the Texas Supreme Courtrsquos Coastal Oil amp Gas Corp v Garza Energy Trust decision which in the courtrsquos view ldquogives oil and gas operators a blank check to steal from the small landownerrdquo The court also denied summary judgment on the breach of contract and drainage claims

Matter of Cent NY Oil amp Gas Co LLC


Matter of Cent NY Oil amp Gas Co LLC No 515347

(NY App Div 3d Deprsquot 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 expertrsquos 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 ldquopremature and speculativerdquo If hydraulic fracturing eventually proved to pose an unacceptable risk to petitionerrsquos storage facility petitioner could at such time seek to acquire whatever additional rights were necessary

Caldwell v Kriebel Resources Co LLC


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 plaintiffsrsquo 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 plaintiffsrsquo claim that defendantsrsquo had breached an implied covenant to develop in ldquopaying quantitiesrdquo The court also was not persuaded that it should impose a ldquogood faithrdquo 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 plaintiffsrsquo 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 US Deprsquot of Interior


Citizens for a Healthy Cmty v US Deprsquot of Interior No 12-cv-

01661 (D Colo filed June 26 2012)

Plaintiff challenged the Bureau of Land Managementrsquos (BLMrsquos) 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 FOIArsquos exemption for commercial or financial information obtained from a person that is privileged or confidential (Exemption 4) as the basis for withholding the information


01661 (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 defendantsrsquo contention that it was necessary to exempt such information from disclosure because exploration for oil and gas on public lands was very competitive and businessesrsquo 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 ldquoruns directly contrary to the purpose of the public sale processrdquo 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


01661 (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 NY


NRDC v Town of Sanford NY No 313-CV-163

(NDNY 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 defendantrsquos Town Board meetings Plaintiff organizations alleged that the resolution violated their membersrsquo state and federal constitutional rights


(NDNY Apr 18 2013)

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

Vavala v Hall


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 7128-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 plaintiffsrsquo 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 Senecarsquos 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 Senecarsquos petition to open the judgment because Senecarsquos petition was untimely

Cain v XTO Energy Inc


Cain v XTO Energy Inc No 11-C-165 (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 111-cv-111

(ND W Va July 2011)

The action was removed to federal court

Cain v XTO Energy Inc No 111-cv-111 (ND 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 andor gas within and underlying the subject tract nonetheless may use the surface for the production of oil andor gas that is not within and underlying the subject tract The court denied plaintiffrsquos 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


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 EPArsquos 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 Pennsylvaniarsquos alleged failure ldquoto perform legally adequate and complete single source determinations for the oil and gas industriesrdquo

Matter of Fluid Recovery Services LLC

Matter of Hart Resource Technologies Inc

Matter of Pennsylvania Brine Treatment Inc


Matter of Fluid Recovery Services LLC Docket No CWA-

03-2013-0051DN 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)

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 amp Gas (USA) Inc


Matter of Encana Oil amp Gas (USA) Inc Case No U-17195

(Mich Pub Serv Commrsquon 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 MSPCrsquos limited jurisdiction it could not consider environmental issues and that petitioners had brought their challenge in the wrong forum

D amp L Energy Inc v Div of Oil amp Gas Resources Mgmt


D amp L Energy Inc v Div of Oil amp Gas Resources Mgmt Appeal

No 847 (Ohio Oil amp Gas Commrsquon June

2013)

D amp L Energy Inc (DampL) appealed an order of the Ohio Division of Oil and Gas Resources Management revoking saltwater injection permits held by DampL 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 DampLrsquos 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 DampLrsquos participation in an illegal dumping incident in January 2013 was ldquoso egregiousrdquo as to justify the draconian effects of the mandates in the Division chiefrsquos order

Bidlack v Chesapeake Appalachia LLC


Bidlack v Chesapeake Appalachia LLC No 10-EQ-

000761 (Pa Ct Com Pl filed Dec 2010)

(removed to MD Pa Jan 2011)

In a first amended complaint plaintiffs alleged that defendantsrsquo oil and gas exploration activities had caused environmental contamination in and around plaintiffsrsquo 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-cv-

00129 (removed to MD Pa Jan 2011)


US v XTO Energy Inc


United States v XTO Energy Inc 413-cv-01954-MWB (MD Pa

Sept 18 2013)

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 $100000 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


WildEarth Guardians v EPA No 12-1326 (DC Cir July 20 2012) 13-1032 (DC Cir Feb 14 2013)

Petitioners sought review of EPArsquos 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 (DC Cir Mar 18 2013)

Petitioners filed a nonbinding statement of issues specifying that they would be focusing on EPArsquos designation for the Uinta Basin

Mississippi Commission on Environmental Quality v EPA No 12-1309 (DC Cir May 10

2013)

The proceeding was consolidated with other challenges of EPArsquos 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


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 plaintiffrsquos 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


Reece v AES Corp No CIV-12-0457-JH (ED Okla Jan 8 2014)

Plaintiffs from LeFlore County Oklahoma alleged that they sustained personal injuries and property damage from defendantsrsquo 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 ownersoperators 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 plaintiffsrsquo 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 producersrsquo conductmdashand warned that this would be plaintiffsrsquo last opportunity to amend their complaint

Whiteman v Chesapeake Appalachia LLC


Whiteman v Chesapeake Appalachia LLC No 12-1790


The Fourth Circuit affirmed the district courtrsquos granting of summary judgment to defendant on plaintiffsrsquo 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 plaintiffsrsquo property For trespass claims involving owners of mineral estates rights to enter the surface estate ownerrsquos land West Virginia law requires that the invasion be ldquoreasonably necessaryrdquo and that it not impose a ldquosubstantial burdenrdquo In this case the Fourth Circuit found that the record established that the waste pits did not impose a ldquosubstantial burdenrdquo on plaintiffsrsquo surface rights where defendantrsquos expert opinedmdashand plaintiffs did not rebutmdashthat the waste pits had not affected plaintiffsrsquo property value at all The Fourth Circuit also concluded that plaintiffs had failed to prove that the waste pits were not ldquoreasonably necessaryrdquo given that the open pit disposal system was the ldquocommon and ordinaryrdquo disposal method in West Virginia at the time of the drilling and was consistent with state permitting requirements

Leighton v Chesapeake Appalachia LLC


Leighton v Chesapeake Appalachia LLC No 113ndashCVndash2018 (WD Pa Nov 26 2013)

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 defendantsrsquo 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 clausersquos 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 courtrsquos conclusions

Stroud v Southwestern Energy Co


Hill v Southwestern Energy Co No 412ndashcvndash500ndashDPM (ED

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 No 412-cv-00500-DPM

(ED Ark Sept 25 2015)

The federal district court for the Eastern District of Arkansas dismissed landownersrsquo 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 plaintiffsrsquo expert witness who had derived an equation that he said showed that waste fluid had migrated under the plaintiffsrsquo land did not meet the evidentiary standard in Daubert v Merrell Down Pharmaceuticals Inc The court said the equation ldquoassumes the answer to the fighting issuerdquo and that the expertrsquos testimony was not based on sufficient facts or data about the subsurface The court also identified other methodological problems with the expertrsquos 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


Carter v EOG Resources Inc No 412ndashCVndash003 (DND 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 Mortinsonrsquos 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 defendantsrsquo arguments concerning the timeliness of the motion finding that the amendment simply made the assertion of the common law wifersquos right to recover under North Dakotarsquos wrongful death statute more explicit

Beezley v Broomfield


Beezley v Broomfield No 2013CV30304 (Colo Dist Ct

Dec 10 2013)

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 Cityrsquos 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 Courtrsquos determination of Hanlen vs Gessler another lawsuit that concerns the elections process

Hilcorp Energy Corp v Pennsylvania


Hilcorp Energy Corp v Pennsylvania EHB Docket No 2013-155-SA-R (Pa EHB filed

Aug 26 2013) (dismissed Nov 20 2013)

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 3000 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 ldquo[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 Shalerdquo PADEP appeared to be attempting to ldquoabdicaterdquo its authority to the EHB If PADEP ultimately grants Hilcorprsquos application it would be the first use of force pooling in Pennsylvania in the context of horizontal hydraulic fracturing

US v Stinson


US v Stinson No 112-cr-00012-JHM-HBB (WD Ky Jan

16 2014)

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 EPArsquos 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 $45000 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

US v Chesapeake Appalachia LLC


US v Chesapeake Appalachia LLC No 513-cv-00170 (ND W

Va Dec 19 2013)

Chesapeake Appalachia LLC (Chesapeake) reached an agreement with the US 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 US 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 $32 million civil penalty half to the US and half to the state The consent decree notes that it does not impose a civil penalty in connection with Chesapeakersquos 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


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 Statersquos 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 $195000 in five installments through 2017 as well as $5000 in attorney fees This was reportedly Wisconsinrsquos first environmental enforcement action against a sand mine

United States v Guesman

United States v Lupo


United States v Guesman No 113 CR 113 (ND Ohio Aug 29

2013)

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 413-cr-00113-DCN (ND 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 Luporsquos 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 413-cr-00113-DCN (ND Ohio Aug

5 2014)

The court sentenced Lupo to 28 months in prison and ordered him to pay a $25000 fine

Henry v Chesapeake Appalachia LLC


Henry v Chesapeake Appalachia LLC 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 Chesapeakersquos filing of a Declaration and Notice of Pooled Unit (DPU) (which declared the creation of a unit that included plaintiffsrsquo properties) a few days before the primary term of the leases expired The court held that filing of the DPU constituted the ldquocommencement of operations ldquo and thus triggered the extension of the leases

Lewis v EnerQuest Oil and Gas LLC


Lewis v EnerQuest Oil and Gas LLC No 12-CV-1067 (WD 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 plaintiffsrsquo 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


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)

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 plaintiffrsquos rights to enter their properties for seismic testing The court ordered plaintiff to pay a $25000 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 No GD 13-013489 (Pa Ct Comm Pl Apr 8 2014)

The court granted the motion for partial judgment on the pleadings of a mineral rights leaseholder who claimed that pursuant to 2013 amendments to Pennsylvaniarsquos Oil and Gas Lease Act (section 341) 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 US Constitution rejecting defendantsrsquo 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


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 courtrsquos holding that the contract required royalties from the horizontal wells to be allocated based on the productive portions of the wells underlying the partiesrsquo properties The contract allocated royalties to the owner of the surface estate on which a well was ldquosituatedrdquo The court concluded that the horizontal wells were ldquosituatedrdquo 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



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 Pennsylvaniarsquos 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


BP America Production Co v Zaffirini No 04-11-00550-CV (Tex Ct App Aug 30 2013)

(reconsideration amp rehrsquog denied Nov 2013)

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 lessorsrsquo 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 ldquounallocatedrdquo 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 BPrsquos common law fraud fraud-in-the-inducement or fraud by nondisclosure claims

Community Bank of Raymore v Chesapeake Exploration LLC



No 08-12-00025-CV (Tex Ct App Nov 6 2013) (rehrsquog denied

Jan 15 2014)

Plaintiff and defendants entered into four blocks of oil and gas leases covering 16000 acres in Texas During the leasersquos primary term defendant Chesapeake Exploration LLC (Chesapeake) drilled producing wells in one of the blocks the deepest of the wells extended 5672 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 courtrsquos ruling in favor of the leaseholder defendants The court held that the leasersquos ldquohorizontal Pugh clauserdquo which provided for termination of the lease below the base of the deepest formation from which the leaseholder was then producing oil or gas ldquonever sprang into liferdquo The Pugh clause was triggered by ldquothe expiration of the Primary Term or the conclusion of the continuous development programrdquo and the court considered the meaning of ldquoorrdquo as well as the clausersquos 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 leasersquos severance clause to break the block into 17 producing units each separately governed by the leasersquos terms (which would have been to plaintiffrsquos advantage) The court held that the lease provided that the severance clause was triggered only after the expiration of the primary term ldquoandrdquo any extension of the primary term Rehearing was denied on January 15 2014

Liggett v Chesapeake Exploration LLC


Liggett v Chesapeake Exploration LLC 512CV2389

(ND Ohio Oct 11 2013)

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 defendantsrsquo 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 Liggettsrsquo frivolous conduct claim was without merit

Wiley v Triad Hunter LLC


Wiley v Triad Hunter LLC No 212-cv-00605 (SD 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 LLC entities (Chesapeake) and Triad Hunter LLC (Triad) The leases contained identical ldquoParagraph 14srdquo entitled ldquoPreferential Right to Renewrdquo 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 212-cv-00605 (SD 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 Triadrsquos 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 landownersrsquo claims

Stewart v Chesapeake Exploration LLC


Stewart v Chesapeake Exploration LLC Nos 12-4457 12-4466 12-4517 13-3021 (6th Cir Oct 30 2013)

The Sixth Circuit affirmed the district courtrsquos ruling in favor of defendant Chesapeake Exploration LLC 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 landownersrsquo 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 Chesapeakersquos interest in developing its oil and gas rights were aligned with the landownersrsquo The court stated ldquoWe are therefore confident that if Chesapeake declined in bad faith to explore or drill on a landownerrsquos property and instead sought merely to hold the property indefinitely Ohio law would provide the landowner a remedyrdquo

Amarado Oil Co Ltd v Davis


Amarado Oil Co Ltd v Davis No 512cv627 (ND 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 plaintiffs 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 LP v Chesapeake Appalachia LLC



No 313-cv-02289 (MD 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 LLC (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 ldquomarketable formrdquo 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 275 percent of all such deducted costs from September 1 to the effective date of the settlement (a total payment of approximately $75 million) In the future class members would bear 725 percent of the post-production 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


Brown v Chesapeake Appalachia LLC No 512CV71

(ND W Va Aug 21 2013)

Plaintiff brought a putative class action seeking a declaratory judgment regarding the construction andor 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 ldquopriority optionrdquo 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 plaintiffrsquos construction was at odds with the plain meaning of the provision because it attributed the same meaning to the words ldquorenewrdquo and ldquoextendrdquo The court also held that the defendantrsquos reading of Paragraph 19 did not render the lease in violation of the rule against perpetuities Plaintiff has appealed the decision

Humberston v Chevron USA Inc


Humberston v Chevron USA 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 defendantsrsquo right to construct and maintain an 11-acre freshwater impoundment on plaintiffsrsquo 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 Chevronrsquos motion the court noted that the lease and Pennsylvania law permitted use of the surface area of the plaintiffsrsquo property as ldquoreasonably necessary or convenientrdquo 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 plaintiffsrsquo 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


Chesapeake Exploration v Buell No 212-cv-916 (SD 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


Reep v North Dakota Nos 20130110 amp 20130111 (ND

Dec 26 2013)

The North Dakota Supreme Court ruled in the Statersquos favor when it determined that the State held the mineral rights to the ldquoshore zonerdquo 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 Statersquos constitution precluded ruling that ownership of the mineral rights was conferred on upland owners by a state statute that provided that an upland ownerrsquos property extended to the low watermark The contested areas included portions of the Missouri River that run through the Bakken Shale

Rolla v Tank


Rolla v Tank No 20130035 (ND 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 fatherrsquos 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 fatherrsquos estate to determine ownership of the mineral estate The North Dakota Supreme Court affirmed the district courtrsquos 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 fatherrsquos successors

Wellington Resource Group LLC v Beck Energy Corp


Wellington Resource Group LLC v Beck Energy Corp No 212-CV-104 (SD 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 Transactrsquos 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 Transactrsquos ldquoreal estate claimsrdquo After a ldquothorough survey of Ohio case lawrdquo 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 Deprsquot of Natural Res


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 1200 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 attorneyrsquos fees as the attorneys were in essence proceeding as pro se litigants who had not incurred attorney fees

Trail Enterprises Inc dba Wilson Oil Co v City of Houston


Trail Enterprises Inc dba 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 dba 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 Houstonrsquos 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 Cityrsquos 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


Houston No 13-1374 (US 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 courtrsquos decision which Wilson Oil contended improperly applied a ldquosubstantially advancing formulardquo to determine that there was no compensable taking because the Cityrsquos 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 USA 544 US 528 (2005)


Houston No 13-1374 (US Oct 6 2014)

The US Supreme Court denied certiorari without comment

Star Insurance Company v Bear Productions Inc


Star Insurance Company v Bear Productions Inc No CIV-12-149-RAW (ED 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 insurerrsquos motion for summary judgment ruling that the relevant policiesrsquo pollution exclusions barred coverage Bear had negotiated a limited exception to the exclusion for ldquopollution incidentsrdquo but the allegations in the underlying action did not qualify for the exception




2013)


Key Operating amp Equipment Inc v Hegar


Key Operating amp Equipment Inc v Hegar No 33968 (Tex Dist

Ct filed Dec 2007) (inj issued) No 01-10-00350-CV (Tex Ct

App revrsquod trial court Oct 2011) (op withdrawn on rehrsquog Jan

2013) No 13-0156 (Tex pet for review granted Dec 13 2013) (oral argument Feb 4 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 plaintiffsrsquo-respondentsrsquo 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

Key Operating amp Equipment Inc v Hegar No 13-0156 (Tex June

20 2014)

The Texas Supreme Court ruled that ldquowhen 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 leaserdquo In doing so the court reversed the appellate courtrsquos decision that ruled that the lesseersquos 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 courtrsquos decision was at odds with the ldquoprimary legal consequencerdquo of pooling ldquothat production anywhere on the pooled unit and operations incidental to that production are regarded as taking place on each pooled tractrdquo

Environmental Processing Systems LC v FPL Farming Ltd


Environmental Processing Systems LC v FPL Farming Ltd No 12-0905 (Tex oral

argument Jan 7 2014)

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 amp Gas Association v City of Fort Collins


Colorado Oil amp 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 Coloradorsquos Oil and Gas Conservation Act and the rules of the Colorado Oil and Gas Conservation Commission (COGCC) implementing the Act


2013CV031385 (Colo Dist Ct mot to intervene filed Feb 13

2014)

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


2013CV031385 (Colo Dist Ct Aug 7 2014)

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 and Gas Association v City of Fort Collins No 14CA1991



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


Colorado Oil amp Gas Association v City of Lafayette


Colorado Oil amp 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 Cityrsquos 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


The Colorado district court ruled that the City of Lafayettersquos 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 statersquos interest in oil and gas activities was not ldquoso patently dominantrdquo over local interest in land use control as to warrant implied preemption Instead the court ruled that the voter-approved 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 ldquono way to harmonizerdquo the charter amendment with the OGCA because the local interest in banning drilling was not reconcilable with state lawrsquos goals of production prevention of waste and protection of correlative rights

Wallach v NY State Deprsquot of Envtl Conservation


Wallach v New York State Department of Environmental Conservation Index No 6770-

2013 (NY Sup Ct filed Dec 17 2013)

The bankruptcy trustee for Norse Energy USA which holds oil and gas lease rights to approximately 130000 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 DECrsquos 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 SEQRArsquos 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 exceptionmdashproperty owners whose land is targeted for rezoning



American Petroleum Institute v EPA No 13-1289 (DC Cir filed

Nov 22 2013 consolidated Dec 3 2013 held in abeyance

Dec 27 2013)

Five energy industry groups filed petitions in the DC Circuit seeking review of EPArsquos 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 DC Circuit granted a request to hold the proceedings in abeyance pending EPArsquos responses to requests for reconsideration The DC Circuit is also holding challenges to the 2012 NSPS in abeyance pending EPArsquos action on petitions for reconsideration

WildEarth Guardians Petition Concerning Sage Grouse Habitat


WildEarth Guardians et al Petition to Department of the

Interior and Bureau of Land Management Concerning Sage Grouse Habitat (Oct 24 2013)

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 US Fish and Wildlife Service (FWS) is scheduled to complete its determination of the greater sage grousersquos 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


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


Davis v Bureau of Land Management Case No 113-cv-

00971 (WD Mich Sept 5 2013)

Husband and wife plaintiffs brought a lawsuit challenging the US Bureau of Land Managementrsquos (BLMrsquos) 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


Center for Biological Diversity Notice of Intent to Sue (Sept 5

2013)

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 BLMrsquos 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


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)

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


Clean Water Action v Waste Treatment Corp No 13-00328 (WD Pa filed Oct 28 2013)

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 defendantrsquos 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 MD 2013 (Pa Commw Ct)) may lead to a quick disposition of this citizen suit

French v Occidental Permian Ltd


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 courtrsquos ruling that an oil company could deduct from royalties the processing costs for removing carbon dioxide (CO2) from ldquocasinghead gasrdquo 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 ldquoindigenous to the production fieldrdquo was not part of production (meaning the costs were deductible from royalties) this case was apparently the first to address whether the ldquothe separation of extraneous substances injected into the fieldrdquo 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 LP v Chesapeake Operating Inc


Conglomerate Gas II LP v Chesapeake Operating Inc No 096 269136 13 (Tex Dist

Ct filed Nov 8 2013)

Plaintiff entered into an exploration and development (EampD) agreement with Chesapeake entities under which plaintiff contributed leases for Chesapeake to develop wells in the Barnett Shale (approximately 6000 below ground level) while plaintiffrsquos interest in shallower formations would be held by Chesapeakersquos production Plaintiff alleged that Chesapeakersquos plugging and abandonment of wells (and plans for plugging and abandonment) termination of leases and permitting leases to lapse violated the EampD agreement and related agreements Plaintiff seeks declaratory and injunctive relief as well as damages

City of Fort Worth v Chesapeake Operating Inc


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 EampP (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 amp Gas Co LP


Sorenson v Burlington Resources Oil amp Gas Co LP (ND Dist Ct filed Oct 16 2013) No

413-cv-00132-DLH-CSM (DND 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 defendantmdashthe operator of a well that produces oil and gas from their mineral interestsmdashhas 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 amp Gas Co LP No 413-cv-

132 (DND 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 plaintiffsrsquo 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




132 (DND June 13 2014)

The mineral lessors filed a notice of appeal

GMX Resources Inc v Oneok Rockies Midstream LLC


GMX Resources Inc v Oneok Rockies Midstream LLC 513-

ap-01111 (Bankr WD Okla Nov 22 2013)

GMX Resources Inc (GMX) filed an adversary proceeding against Oneok Rockies Midstream LLC (Oneok) in conjunction with GMXrsquos 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 GMXrsquos wells and forcing GMX to shut in its wells GMX alleged that Oneokrsquos 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 GMXrsquos bankruptcy estate

Cherry Canyon Resources LP v Halliburton


Cherry Canyon Resources LP v Halliburton No 213-cv-00238

(SD Tex filed July 31 2013)

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 ldquofull servicerdquo operations in all regions of the US The lawsuit was commenced after the US Department of Justice Antitrust Division confirmed that it was investigating anticompetitive practices in the pressure pumping services market

Cave v City amp County of Broomfield Colorado


Cave v City amp County of Broomfield Colorado No

13CV303 13 (Colo Dist Ct Feb 27 2014)

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 ldquoremarkably transparentrdquo the court found that local officials acted in good faith and had substantially complied with Colorado election law

Chesapeake Appalachia LLC v Department of Environmental

Protection


Chesapeake Appalachia LLC v Department of Environmental Protection No 1570 CD 2013 (Pa Commw Ct Apr 3 2014)

The Pennsylvania Commonwealth Court affirmed the Environmental Hearing Boardrsquos (EHBrsquos) dismissal of Chesapeake Appalachia LLPrsquos (Chesapeakersquos) 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 Deprsquot of Envtl Prot v Dan A Hughes Co LP


State of Florida Department of Environmental Protection v Dan A Hughes Co LP OGC File No 14-0012 (Fla Deprsquot of Envtl Prot

consent order Apr 8 2014)

On December 31 2013 the Florida Department of Environmental Protection (FDEP) ordered Dan A Hughes Co LP (Hughes) to stop work at a well at the Hogan Island Farm in Collier County where Hughes was conducting a ldquoworkover operationrdquo In a consent order effective April 8 2014 Hughes agreed to pay $25000 and to implement a groundwater monitoring plan It also agreed not to conduct any similar ldquoworkover operationsrdquo which involved an ldquoenhanced extraction procedurerdquo 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 Florida Department of Environmental Protection

v Dan A Hughes Co LP OGC Case No 14-0400 (Fla

Deprsquot of Envtl Prot notice of revocation July 18 2014)


v Dan A Hughes Co LP 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 LP (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 Hughesrsquos 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 Hughesrsquos 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 ldquostationary installationrdquo (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 Hughesrsquos 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 $100000 and investigative costs and expenses for maintaining the enforcement action FDEPrsquos 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 ResourcesndashAppalachia LLC


Neuhard v Range ResourcesndashAppalachia LLC No 411-cv-01989 (ED 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 ResourcesndashAppalachia LLC had terminated The court determined that although Range had ldquocommenced a wellrdquo as required to avoid expiration of the lease its activities did not take place ldquoon the Leased Premisesrdquo or ldquoon a spacing unit containing a portion of the Leased Premisesrdquo because Rangersquos designation of a 395-acre unit exceeded its unitization authority under the lease Nor did Rangersquos drilling activities on an adjacent property suffice to extend the lease

Herder Spring Hunting Club v Keller


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 amp Gas Corp v Scroggins


Cabot Oil amp 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 amp Gas Corporation (Cabot) The courtrsquos 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


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 Trinityrsquos property without just compensation In 2008 Trinity leased 3600 acres of mineral rights from the City (in the Cityrsquos 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 US Army Corps of

Engineers


Concerned Citizens of St Tammany v US Army Corps of Engineers No 14-1118 (ED La

filed May 15 2014)

A citizen group asked the federal district court for the Eastern District of Louisiana to enjoin the US Army Corps of Engineersrsquo commencement of a public comment period on an application by Helis Oil amp 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 ldquofirst ever fracking projectrdquo 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 Corpsrsquo actions violated the Clean Water Act and Administrative Procedure Act because the Corps had not provided information necessary for meaningful public comment


June 12 2014)

After the US 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


Sierra Club Earthjustice amp 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 Actrsquos hazardous air pollutant provisions The petition cited the authority granted to EPA in 42 USC sect 7412(n)(4)(B) to establish an area source category for such wells where ldquoemissions of hazardous air pollutants from such wells present more than a negligible risk of adverse effects to public healthrdquo

WildEarth Guardians v United States Forest Service


WildEarth Guardians v United States Forest Service No 214-cv-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 BLMrsquos July 17 2014 Oil

and Gas Competitive Lease Sale and Environmental Assessment

DOI-BLM-NV-B000-2014-0001-EA


Center for Biological Diversity Protest of BLMrsquos July 17 2014 Oil and Gas Competitive Lease Sale and Environmental Assessment

DOI-BLM-NV-B000-2014-0001-EA (May 12 2014)

The Center for Biological Diversity (CBD) submitted a formal protest to BLMrsquos Nevada office objecting to BLMrsquos plan to conduct an oil and gas lease sale in July 2014 for 102 parcels covering 17402136 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 LP


Mosher v Dan A Hughes Co LP Case No 13-004254 (Fla Divrsquon 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 FDEPrsquos purview On May 14 2014 all parties submitted proposed recommended orders Case documents are available at the Florida Division of Administrative Hearingsrsquo 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


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 Protectionrsquos 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 facilityrsquos name (Lambrsquos Farm Storage Facility) was deceptive and that a public hearing should have been held prior to issuance of the permit Appellants called Chesapeake ldquoa frequent violatorrdquo 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 Townshiprsquos objections include that the facilityrsquos 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 ldquoan independent reviewrdquo resulted in a determination that the permit process had been proper





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 ldquoless than perfect attention to detailrdquo 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 facilityrsquos location The Board also said that approval of coverage under the permit did not violate the Pennsylvania constitutionrsquos Environmental Rights Amendment The Board noted that any expansion of the facilityrsquos operations beyond storage would require a permit modification application

Joint Landowners Coalition of New York Inc v Cuomo


Joint Landowners Coalition of New York Inc v Cuomo Index No 0008432014 (NY Sup Ct filed Feb 14 2014 hearing Apr

25 2014)

A nonprofit organization formed ldquoin a response to the regulatory barriers to natural gas development in New Yorkrdquo 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 ldquoorchestrating the delayrdquo 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 No

843-2014 (Sup Ct Albany Co July 11 2014 notice of appeal July

24 2014)

The court ruled that plaintiffs-petitionersmdasha landowner with an oil and gas lease a holder of mineral rights and a coalition of 38 coalitions representing over 70000 New York landownersmdashdid not have standing to bring SEQRA claims challenging DECrsquos 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 petitionersrsquo 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 requirementmdashproperty owners whose land is targeted for rezoning The court said that it recognized ldquothe possibility that respondentsrsquo alleged actionsinactions in the SGEIS process are potentially shielded from challengesrdquo but that it could not ldquodiscern any applicable exception in the SEQRA case law that would allow standing to be conferred upon the petitioners hereinrdquo 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


Fort Worth Housing Finance Corp v Chesapeake Energy

Corp No 352-272138-14 (Tex Dist Ct filed May 16 2014)

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 ldquoacted in concert with related and affiliated parties to manipulate sales points and to enter into non-armrsquos length agreements as a means to perpetuate a fraud in order to try to impose upon [plaintiffs] costs the lessees agreed to bearrdquo 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


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


Fort Worth Independent School District v Chesapeake Energy


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 ldquoacted in concert with related and affiliated parties to manipulate sales points and to enter into non-armrsquos length agreements as a means to perpetuate a fraud in order to try to impose upon [plaintiffs] costs the lessees agreed to bearrdquo 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


Delaware Riverkeeper Network v Federal Energy Regulatory

Commission No 13-1015 (DC Cir June 6 2014)

The DC 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 ldquoconnected closely related and interdependentrdquo 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 ldquofit with the others like puzzle pieces to complete an entirely new pipelinerdquo 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 ldquowould have declined to delve into the murky waters of backwards-looking segmentation reviewrdquo And though Senior Judge Silberman concurred in both the segmentation and the cumulative impacts holdings he agreed that the ldquothe lsquocumulative impactrsquo issue is a stronger ground upon which to base the decisionrdquo

Crowder v Chesapeake Operating Inc


Crowder v Chesapeake Operating Inc No 2011-

008256-1 (Tarrant Co Ct at Law May 23 2014)

A Texas state court jury awarded $20000 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 $88000 sought by plaintiffs Plaintiffsrsquo attorney also represented plaintiffs in another case involving the same drilling site The jury in that casemdashAnglim v Chesapeake Operating Incmdashfound in favor of defendant in April 2014

Anglim v Chesapeake Operating Inc


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



Commission No 10-cv-05639 (DNJ June 19 2014)

Plaintiffs commenced this action in 2010 to challenge the Delaware River Basin Commissionrsquos (DRBCrsquos) approval of a water withdrawal docket authorizing Stone Energy Corporation to withdraw up to 07 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


In re Environmental Impact Statement Regarding the David Nisbit Quarry Conditional Use Permit Application to Extract

Industrial Sand No A13ndash0745 A13ndash1198 (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 amp Gas Inc


In re Windfall Oil amp 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 amp Gas Inc for a Class II-D injection well in Pennsylvania for waste fluids associated with oil and gas development EPArsquos 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


In re Endangered Species Act Section 4 Deadline Litigation No

10-mc-00377 (DDC 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 Servicersquos (FWSrsquos) 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 US Bureau of Land Management issued an ldquoInstruction Memorandumrdquo 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


In re Seneca Resources Corp UIC Appeal Nos 14-01 14-02 amp 14-

03 (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


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 $192044 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 1100 barrels per hour and (2) a production water spill of more than 9000 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 LLC


Eastham v Chesapeake Appalachia LLC No 13-4233

(6th Cir June 6 2014)

The Sixth Circuit Court of Appeals affirmed the granting of summary judgment to defendant Chesapeake Appalachia LLC regarding the renewal terms of an oil and gas lease embodied in the much-litigated Paragraph 19 of the lease which included the sentence ldquoUpon 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 leaserdquo 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 ldquoextendrdquo were synonymous with options to ldquorenewrdquo 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 defendantrsquos interpretation of the lease was against public policy or led to an unconscionable result The same result was reached in Kenney v Chesapeake Appalachia LLC No 2013 CV 240 (Ohio Ct Comm Pleas Apr 3 2014) Bissett v Chesapeake Appalachia LLC No 513-CV-20 (ND WVa Apr 14 2014) and Brown v Chesapeake Appalachia LLC No 512-CV-71 (ND WVa Aug 18 2013)

Cole v EV Properties LP


Cole v EV Properties LP 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 Coastrsquos 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 ldquowould not permit [plaintiffs] to exploit a technically defective acknowledgment to documents that they unquestionably executedrdquo

Fayviard LLC v UGI Storage Co


Fayviard LLC v UGI Storage Co No 413-cv-02400 (MD Pa June

6 2014)

Plaintiff originally filed this lawsuit in the Pennsylvania Court of Common Pleas seeking the appointment of ldquoviewersrdquo to assess damages owed as a result of the de facto condemnation by defendant of plaintiffrsquos 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 3000-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 plaintiffrsquos propertyrsquos 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 plaintiffrsquos 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 ldquoimplicatedrdquo federal law including the Natural Gas Act which was the source of defendantrsquos eminent domain power The court was highly critical of counsel for both parties stating that ldquo[t]he partiesrsquos briefs are to put it lightly not exemplary and certainly do not meet the complexity of the issues involvedrdquo The court noted that plaintiffrsquos counsel had ldquocandidly if ludicrouslyrdquo admitted that he had not extensively researched the law before filing briefs in support of remand

Mifflin Energy Corp v Chevron Appalachia LLC


Mifflin Energy Corp v Chevron Appalachia LLC GD No 10-

007408 (Pa Ct Comm Pleas May 21 2014 notice of appeal May

28 2014)

The Pennsylvania Court of Common Pleas dismissed Mifflin Energy Corporationrsquos (Mifflinrsquos) 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 ldquonegatively impacted in real and direct fashionrdquo since Mifflinrsquos alleged lost profits were profits that ldquomightrdquo 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 courtrsquos judgment to Pennsylvania Superior Court

Bass Energy Inc v City of Broadview Heights


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 Cityrsquos 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


Defenders of Wildlife v Jewell No 114-cv-01025 (DDC filed

June 17 2014)

Multiple challenges were filed in multiple venues to the final determination by the US 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 ldquoprecipitous population declinerdquo 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 agencyrsquos 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 714-cv-00050-RAJ (WD Tex filed June 9 2014) and Oklahoma Independent Petroleum Association v Department of the Interior No 414-cv-00307-JHP-PJC (ND Okla filed June 8 2014)

Permian Basin Petroleum Assn v Dept of the Interior


Permian Basin Petroleum Association v Department of the Interior No 714-cv-00050-RAJ (WD Tex filed June 9 2014)

Multiple challenges were filed in multiple venues to the final determination by the US 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 ldquomassive scalerdquo by private and public stakeholders The other lawsuits were Defenders of Wildlife v Jewell No 114-cv-01025 (DDC filed June 17 2014) and Oklahoma Independent Petroleum Association v Department of the Interior No 414-cv-00307-JHP-PJC (ND Okla filed June 8 2014)

Permian Basin Petroleum Association v Department of the Interior No 14-cv-50 (WD 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 chickenrsquos 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 ldquoin a cursory and conclusory mannerrdquo The plaintiffs in the case had alleged that the listing would have impeded oil and gas operations in the Permian Basin ldquothe most prolific oil-producing region in the United Statesrdquo

Okla Indep Petroleum Assrsquon v Deprsquot of the Interior


Oklahoma Independent Petroleum Association v

Department of the Interior No 414-cv-00307-JHP-PJC (ND

Okla filed June 8 2014)

Multiple challenges were filed in multiple venues to the final determination by the US 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 speciesrsquos status between the proposed listing in 2012 and the final listing in 2014The other lawsuits were Defenders of Wildlife v Jewell No 114-cv-01025 (DDC filed June 17 2014) and Permian Basin Petroleum Association v Department of the Interior No 714-cv-00050-RAJ (WD Tex filed June 9 2014)

St Tammany Parish Council v Welsh


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 amp Gas Co for the drilling of a well at which hydraulic fracturing would be used The parish council seeks a declaratory judgment that the parishrsquos zoning ordinances should be given primary consideration in defendantrsquos review of the permit application The Parish Council authorized the lawsuit on June 5 2014


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 Councilrsquos 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 parishrsquos master plan as it was required to do by state

Collier County v Fla Dept of Envtl Prot


Collier County v Florida Department of Environmental

Protection OGC File No 14-0012 (Fla Deprsquot 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 LP (Hughes) The consent order concerned a well at the Hogan Island Farm in Collier County where Hughes conducted a ldquoworkover operationrdquo 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 FDEPrsquos 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





Protection OGC File No 14-0012 (Fla Deprsquot 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 LP (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 FDEPrsquos concerns regarding a ldquoworkover operationrdquo conducted by Hughes at the well that involved an ldquoenhanced extraction procedurerdquo similar to hydraulic fracturing FDEP revoked the permit in July 2014 alleging that Hughes had not complied with the consent orderrsquos terms In exchange for the Countyrsquos 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 FDEPrsquos ongoing administrative and judicial enforcement actions against Hughes

Willmeng v State of Colorado


Willmeng v State of Colorado No 2014CV30718 (Colo Dist Ct

filed June 10 2014)

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 US 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 Prsquoship v Access Midstream Partners LP


Suessenbach Family Limited Partnership v Access Midstream Partners LP No 314-cv-01197-

MEM (MD 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 LP (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 Chesapeakersquos midstream assets (eg natural gas gathering and intrastate pipeline operations) to the new company The crux of plaintiffsrsquo 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 Plaintiffsrsquo 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


Lander County Formal Administrative Protest (June 1

2014)

Lander County filed a formal protest of the US Bureau of Land Managementrsquos 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


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 Protectionrsquos (PADEPrsquos) approval of an application by Range ResourcesndashAppalachia 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 PADEPrsquos approval of the application was therefore improper

Chesapeake Appalachia LLC v Cameron International Corp


Chesapeake Appalachia LLC v Cameron International Corp No

CIV-13-1118-M (WD Okla July 21 2014)

The federal district court for the Western District of Oklahoma denied Cameron International Corporationrsquos (Cameronrsquos) motion to dismiss an action by Chesapeake Appalachia LLC (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 ldquoall other fracturing operations in Pennsylvania and elsewhererdquo Chesapeake alleged it had suffered harm from the failed wellhead including costs to ldquomonitor cleanup and remedy the incidentrdquo monitoring costs fines and ldquoloss of goodwill and damage of public reputationrdquo The court held that the economic loss rule did not bar Chesapeakersquos 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


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 Qualityrsquos (MDEQrsquos) denial of drilling permits at well sites located on privately owned lands in a state forest The court concluded that the ldquonondevelopment regionrdquo in the forest where state law provided that no drilling could occur encompassed private as well as public lands The court also affirmed MDEQrsquos denial of a permit in a ldquolimited development regionrdquo 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


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 1500-foot setback 86 would establish a 2000-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 ldquothe creation of the publicrsquos right to Coloradorsquos environmentrdquo and the creation of mechanisms for carrying out this primary objectivemdashnamely making state and local governments trustees of Coloradorsquos environment and authorizing local governments to adopt environmental regulations that are more stringent than the Statersquos The court held that each of the initiatives contained one subject and that the titles set by the Board ldquofairly reflectrdquo the purposes of the initiatives and were not misleading Among other things the court upheld the Boardrsquos decision to remove the term ldquohydraulic fracturingrdquo because it was a ldquocatch phraserdquo and ldquopolitically chargedrdquo 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


Alabama-Coushatta Tribe of Texas v United States No 13-

40644 (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 ldquowaives sovereign immunity for actions against federal government agencies seeking nonmonetary relief if the agency conduct is otherwise subject to judicial reviewrdquo The Tribersquos suit however was a ldquoprogrammatic challengerdquomdashas opposed to a challenge to a ldquoparticular and identifiablerdquo agency actionmdashand was not permissible under the APA The APA waiver of sovereign immunity therefore did not apply

NO Gas Pipeline v Federal Energy Regulatory Commission


NO Gas Pipeline v Federal Energy Regulatory Commission Nos 12-1470 12-1474 12-1475

(DC Cir July 1 2014)

The DC 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 DC Circuit ruled that environmental groups challenging FERCrsquos compliance with the National Environmental Policy Act did not have standing The court said that the environmental petitionersrsquo 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 FERCrsquos action The court also ruled that the challenge by the City of Jersey Citymdashwhich charged that FERC could not constitutionally adjudicate pipeline issues because the pipeline industry was its source of fundingmdashsuffered 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


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 ldquoproduced waterrdquo 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 US Environmental Protection Agency the statersquos 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 ldquonon-exempt zonesrdquo 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 ldquo20-Day Injection Pauserdquo at Well Operated by NGL Water

Solutions DJ LLC


Colorado Oil and Gas Conservation Commission ldquo20-

Day Injection Pauserdquo 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 ldquo20-day injection pauserdquo 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 wellrsquos 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 ldquobasementrdquo 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


Novy v Woolsey Energy Corp No 110599 (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 amp Associate LP


Nolt v TS Calkins amp 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 Pennsylvaniarsquos Landlord and Tenant Act of 1951 and that the Actrsquos statute of frauds barred enforcement of the lease The Pennsylvania Superior Court said this argument turned a ldquoblind eyerdquo 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 lesseersquos 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 leasersquos primary term in their summary judgment motion the Superior Court declined to consider the issue

Bell v Pennsylvania Department of Environmental Protection


Bell v Pennsylvania Department of Environmental Protection No AP 2014-0880 (Pa Office of Open

Records July 11 2014)

The Pennsylvania Office of Open Records (OOR) issued a final determination regarding a request for records made on behalf of Delaware Riverkeeper Network under Pennsylvaniarsquos Right-to-Know Act The request sought records related to the Pennsylvania Department of Environmental Protectionrsquos (PADEPrsquos) 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 Lawrsquos 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


Athens County Fracking Action Network v Department of

Natural Resources No 14-AP-000217 (Ohio Ct App June 20

2014)

The Ohio Department of Natural Resources (ODNR) settled a lawsuit brought under the Statersquos 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 $1000 The local group has appealed the Ohio Oil and Gas Commissionrsquos June dismissal of the grouprsquos appeal of the issuance of a well permit (see here)

Eagle Oil amp Gas Co v Travelers Property Casualty Co of America


Eagle Oil amp Gas Co v Travelers Property Casualty Co of America No 712-cv-00133-O (ND 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 amp Gas Co and Eagle Oilrsquos 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 (PampA) 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 policyrsquos ldquodue care and diligencerdquo 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 Oilrsquos contention that a ldquogross negligencerdquo standard should be read into the ldquodue care and diligencerdquo clause Eagle Oil had incorrectly attempted to replace the ldquoreasonable prudent operatorrdquo standard required by industry practice and Texas regulatory standards with the higher level of culpability specified in Eagle Oilrsquos 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 PampA costs were necessary to bring the well under control to trigger coverage Finally the court rejected Travelersrsquos argument that it was not obligated to cover the costs of redrilling the well The court granted Travelersrsquos motion for summary judgment on plaintiffsrsquo 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 Oilrsquos extra-contractual claims




Eagle Oil amp Gas Co v Travelers Property Casualty Co of America No 712-cv-00133-O (ND Tex mot for new trial amp renewed mot

for JMOL amp 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 $575 million including more than $22 million for control-of-well and pollution costs almost $90000 for care custody and control costs more than $13 for plugging and abandonment costs and $2 million in redrill costs The court also held that the policyholder had established the insurerrsquos 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 $600000 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 courtrsquos earlier partial summary judgment rulings and a motion for a new trial

Geokinetics USA Inc v Center Township


Geokinetics USA Inc v Center Township No 214-cv-00982 (WD 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 companymdashwhich alleged it had obtained all required state approvalsmdashrequested the townshiprsquos approval to use certain local roads The company alleged that the local ordinance ldquowas passed without any public notice or processrdquo and that it ldquoeffectively prevents any and all seismic testing in the Township through vague arbitrary and unreasonable regulationsrdquo The company further contended that the ordinance ldquocontains onerous and arbitrary application requirements confiscatory application fees punitive penalty provisions and operational regulations that are inconsistent with state regulationsrdquo The company alleged state law preemption as well as violations of Pennsylvaniarsquos Second Class Township Code and violations of procedural and substantive due process and equal protection rights

Western States Petroleum Association v City of Compton


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 ldquowhere the subsurface bottom hole is located in the Cityrdquo WSPA claimed that state law occupied the field of well stimulation treatments and therefore preempted the local ban The complaint also alleged that the ordinancersquos regulation of activities outside City limits violated the California constitution because it was an ultra vires action beyond the Cityrsquos police powers and that the Cityrsquos adoption of the ordinancemdashwhich WSPA said was ldquocrammedrdquo through City Council in one week with no notice to or testimony from affected mineral rights holdersmdashviolated the due process rights of those mineral rights holders

Athens Cnty Fracking Action Network v Ohio Deprsquot of Natural Resources


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 Commissionrsquos 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


Reese River Basin Citizens Against Fracking LLC v

Bureau of Land Management No 314-cv-

00338 (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 US Bureau of Land Managementrsquos (BLMrsquos) decision to lease 230989 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 ldquoignored or downplayedrdquo 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



00338 (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 amp Gas Corp


Harrison v Cabot Oil amp Gas Corp No 61 MM 2014 (Pa

July 16 2014)

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 ldquoWhen 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 pendingrdquo A federal district court said in August 2012 that it would not find that a lessorrsquos filing of a lawsuit repudiated a lease warranting extension ldquo[u]ntil the Pennsylvania courts say otherwiserdquo

Apache Deepwater LLC v McDaniel Partners Ltd


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 Courtrsquos review of an appellate court decision that held that ldquoproduction paymentsrdquo must continue after an oil and gas lease expires Production payments are ldquoa share of the oil or other minerals lsquoproduced 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 realizedrsquordquo The obligation to make the production payments in this case arose from the 1953 assignment of four oil and gas leases to Apachersquos 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 ldquogets Texas law backwardsrdquo and that because production payments are ldquosubstantially identicalrdquo to royalties they should terminate when the lease does absent language to the contrary

United States v Wright


United States v Wright No 14-cr-7 (WD 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 US 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


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 ldquocompletely surroundedrdquo plaintiffsrsquo 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 513-cv-00562-XR (WD Tex

remand order Oct 7 2013 order denying motion to remand Aug 6

2013)

Two of the defendants removed the case to federal court asserting that the Clean Air Act preempted plaintiffsrsquo 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

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)

In August 2014 the Texas district court granted summary judgment to defendants The court reportedly said that plaintiffs had failed to link defendantsrsquo activities to their alleged ailments Plaintiffs filed a notice of appeal



Cerny v Marathon Oil Corp (opinion amp 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 familyrsquos claims and affirmed the trial courtrsquos granting of the defendantsrsquo no-evidence motion for summary judgment The court found that the plaintiffs failed to present ldquomore than a scintilla of expert evidence that emissionsrdquo from defendantsrsquo 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 defendantsrsquo activities caused these damages One justice dissented from the portion of the opinion that affirmed judgment for the defendants on the plaintiffsrsquo odor-based nuisance claim

Ladra v New Dominion LLC


Ladra v New Dominion LLC No CJ-2014-115 (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 defendantsrsquo 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 OCCrsquos jurisdiction over the wells was limited ldquosolely to the resolution of public rightsrdquo 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


Butts v Southwestern Energy Production Co No 312-cv-1330

(MD 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 Companyrsquos (SEPCOrsquos) motion for reconsideration of the courtrsquos denial of summary judgment in a case in which homeowners in Susquehanna County Pennsylvania alleged that SEPCOrsquos drilling activities created an invasion of their private use and enjoyment of their homes The homeowners alleged among other things that SEPCOrsquos activities resulted in excessive noise and light and impacts on the homeownersrsquo 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 plaintiffsrsquo 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


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 overruledmdashin a one-sentence ordermdashthe operatorrsquos preliminary objections to the strict liability count in the complaint


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 $29 million go to the manrsquos after-born son pursuant to the Wrongful Death Act and approximately $300000 to the manrsquos estate under the Survival Act

Sovereign Operating Co LLC v City and County of Broomfield Colorado


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 Sovereignrsquos 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


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


In re Investigation by Eric T Schneiderman Attorney General of

State of New York of EOG Resources Inc Assurance No 14-

182 (Oct 1 2014) In re Investigation by Eric T

Schneiderman Attorney General of State of New York of Anadarko

Petroleum Corp Assurance No 14-183 (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 NYAGrsquos Office said the agreements closed investigations launched in 2011 under New Yorkrsquos 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 companyrsquos 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


United States v Garber No 114-cr-114 (DND 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 Dakotarsquos 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


United States v Trans Energy Inc No 514-cv-00117 (ND W Va

consent decree amp complaint Sept 2 2014)

In September 2014 EPA the US 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 US 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


Golden Eye Resources LLC v Ganske No 20130219 (ND Sept

23 2014)

The North Dakota Supreme Court ruled that a district court had erred when it concluded that oil and gas lessorsrsquo fraudulent inducement claims against their lessee were barred as a matter of law The lessors said they were induced to sign leases by the lesseersquos 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 leasesrsquo 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 lesseersquos quiet title action and the lessorsrsquo counterclaims for rescission or cancellation of the leases

Barber v Magnum Land Services LLC


Barber v Magnum Land Services LLC Nos 113-cv-33 to 113-cv-100 113-cv-113 to 113-cv-115 (ND 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 $2000 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 $1666 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 plaintiffsrsquo land The court called this ldquoa blatant misrepresentation of the law of trespass and conversionrdquo that was ldquounreasonable to believerdquo 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 amp Haun Inc v United States


Barlow amp Haun Inc v United States No 08-847L (Fed Cl Sept

26 2014)

In a case involving 26 oil and gas leases covering 26000 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 tronamdashthe hard component of sodiummdashon 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 leaseholdersrsquo 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 US With respect to the fourth plaintiff the court ruled that the US had not repudiated its contractual obligations because it had not unequivocally refused to review an APD




Barlow amp 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 ldquounequivocallyrdquo 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 leaseholderrsquos takings claim for lack of ripeness finding that no property-specific determination had been made with respect to the leaseholderrsquos rights because it never submitted an application for permit to drill The appellate court also affirmed the dismissal of the three other partiesrsquo 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


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 CorpThe 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 ldquocapable of productionrdquo 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


Beardslee v Inflection Energy LLC 12‐4897‐cv (2d Cir July 31 2014) (NY 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 companiesrsquo 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 ldquoquestions of contract interpretation that may not be the typical material for certificationrdquo it would certify the two questions ldquobecause 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 Yorkrdquo With respect to the first question the Second Circuit noted that whether the moratorium was a force majeure event depended on whether barring all ldquocommercially viablerdquo 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




Beardslee v Inflection Energy LLC No 44 (NY 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 clausersquos provisions The Court of Appeals said moreover that the phrase ldquoanything in this lease to the contrary notwithstandingrdquo 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 clausersquos impact on the habendum clause was limited to the habendum clausersquos provisions regarding energy companiesrsquo 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 ldquoout-of-state lsquooilrsquo jurisdictionsrdquo such as Texas and California

Beardslee v Inflection Energy LLC 12‐4897‐cv (2d Cir Aug 19 2015)

Based on the ldquodefinitive statementrdquo 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 companiesrsquo contentions that the Court of Appeals had misquoted the leasesrsquo language and misapplied New York law

Sabella v Appalachian Development Corp


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 courtrsquos 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 ldquowillfully electedrdquo not to conduct a full title search and that they were on constructive notice of plaintiffrsquos interest in the property since the conveyance of the OGMs to plaintiff in 1997 had been duly recorded as required by Pennsylvaniarsquos 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 wifersquos 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 courtrsquos finding that a ldquoreasonably prudent landowner exercising reasonable effortsrdquo would not have discovered defendantsrsquo oil and gas production activities involving his property

Pennsylvania Game Commission v Seneca Resources Corp


Commonwealth of Pennsylvania Pennsylvania Game Commission v

Seneca Resources Corp No 89 MD 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 Commissionrsquos property The court ordered a hearing on the issue of whether the 1928 deed restricted Senecarsquos extraction methods from the Commission propertyrsquos surface to ldquoordinary meansrdquo in use in 1928

Vitali v Pennsylvania Office of the Governor


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 ldquonon-surface impactrdquo drilling on land owned by the Commonwealth OOR said the governorrsquos 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 RTKLrsquos exemption for internal predecisional deliberations did not qualify for the exemption citing among other things the withholding of communications between an employee of the governorrsquos office and an officer of a private corporation OOR also said the governorrsquos office had unreasonably restricted the scope of the request to apply it to only 13 members of the officersquos 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


Warren Drilling Co Inc v Equitable Production Co No 212-cv-00425

(SD 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 Warrenrsquos attorney fees in the instant action On August 26 2014 the court denied EQTrsquos 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 Warrenrsquos 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 Warrenrsquos settlement with the plaintiffs in the water contamination tort action ($40000) and its attorney and expert fees and costs in that action (totaling approximately $155000) 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 EQTrsquos request for a stay but required it to post bond in the full judgment amount




Warren Drilling Co Inc v Equitable Production Co Nos 14-3872 14-

3931 (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 substancemdashhydraulic fracturing fluidmdashthat 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 EQTrsquos 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 attorneyrsquos fees incurred in the contract dispute over indemnity obligations

Texas Oil amp Gas Association v City of Denton


Texas Oil amp 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 Dentonrsquos ban undermined the Statersquos ldquocomprehensiverdquo system regulating oil and gas development and ldquosecond-guesses and impedes this state regulatory frameworkrdquo

Texas Oil amp 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 ldquocommercially reasonablyrdquo 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


Patterson v City of Denton No D-1-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 Officemdashwhich manages ldquooil and gas leases for state-owned 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 landsrdquomdashcharged 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 D-1-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 15-02058-362 (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 ldquocommercially reasonablyrdquo 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


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 414-cv-00639-ALM (ED 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 US 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 414-cv-

00639-ALM (ED 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


Pennsylvania General Energy Co LLC v Grant Township No 14-cv-

209 (WD Pa filed Aug 8 2014)

Pennsylvania General Energy Company LLC and oil and gas exploration and production company challenged Grant Townshiprsquos 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 ldquopersonsrdquo and would not possess the ldquorights privileges powers or protectionsrdquo 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 US Constitutionrsquos Supremacy and Contract Clauses and the First Amendment and that it constituted violations of PGErsquos 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 No 14-cv-209

(WD 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 townshiprsquos 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 courtrsquos decision

Delaware Riverkeeper Network v Pennsylvania Department of Environmental

Protection


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 1000 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


Protection



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 Protectionrsquos (PaDEPrsquos) 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 Pennsylvaniarsquos 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 Pennsylvaniarsquos Oil and Gas Act and had relied on the permitteersquos ldquodeficient and conclusory summaries of the risks and hazards posed by the proposed wellsiterdquo rather than conducting its own analysis

Matter of US Energy Development Corp v New York State Department of

Environmental Conservation


Matter of US Energy Development Corp v New York State Department of Environmental Conservation No 266 CA 13-01416 (NY 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 companyrsquos 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 DECrsquos enforcement authority over out-of-state activities It alleged that the federal Clean Water Act preempted application of New Yorkrsquos laws and regulations to an out-of-state source The appellate court ruled that as a matter of law petitioner could not meet its ldquoheavy burdenrdquo as a party seeking a writ of prohibition of demonstrating that it had a clear right to relief and that the prohibition would be ldquoa more complete and efficacious remedyrdquo than the administrative proceeding and resulting judicial review The court said the company had not demonstrated that DECrsquos 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 agencyrsquos ultra vires act when another avenue of judicial review was available

Delaware Riverkeeper Network v Governor Corbett


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 Pennsylvaniarsquos 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 Pennsylvaniarsquos constitution They sought declaratory judgments that both Governor Corbettrsquos 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 high-volume hydraulic fracturing and directional drilling on such lands

Pennsylvania Department of Environmental Protection v EQT Production Co


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 $45 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 ldquocontinuing violationrdquo subject to a separate civil penalty EQT said this interpretation was at odds with the statutersquos plain meaning and therefore unlawful On October 28 2014 the PaEHB denied EQTrsquos motion for a stay of its proceedings pending resolution of the declaratory judgment action The PaEHB said EQTrsquos action was not an appropriate substitute for an enforcement proceeding before the PaEHB

EQT Production Co v Pennsylvania Department of Environmental Protection


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 statersquos 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 ldquocontinuing violationrdquo subject to a separate civil penalty EQT said this interpretation was at odds with the statutersquos 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 EQTrsquos motion for a stay of its proceedings pending resolution of the declaratory judgment action The PaEHB said EQTrsquos action was not an appropriate substitute for an enforcement proceeding before the PaEHB

Pollard v Quinn


Pollard v Quinn No __ (Ill Cir Ct filed Oct 17 2014)

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 defendantsrsquo 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 legislaturersquos Joint Committee on Administrative Rules approved the Statersquos fracking regulations a development that will allow permits to be issued

Wyoming v US Department of the Interior Independent Petroleum Association of America v Jewell


Independent Petroleum Association of America v Jewell No 215-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 Managementrsquos regulations for hydraulic fracturing on federal and Indian lands The petition said the regulations were a ldquoreaction to unsubstantiated concernsrdquo 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 statesrsquo primary jurisdiction and that they were not tailored to achieve a legitimate government purpose This proceeding was consolidated with Wyomingrsquos lawsuit which became the lead case

Wyoming v US Department of the Interior No 215-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 Managementrsquos (BLMrsquos) regulations of hydraulic fracturing on federal and Indian lands The petition alleged that the regulations exceeded BLMrsquos statutory jurisdiction conflicted with the Safe Drinking Water Act and unlawfully interfered with state regulations Wyomingrsquos lawsuit was consolidated with the proceeding initiated by the Independent Petroleum Association of America the Wyoming lawsuit is the lead case





orders adding Colo as petitioner (Apr 22 2015) ND 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 intervenor-

petitioner (June 23 2015)

Colorado was added as a petitioner Two other statesmdashNorth Dakota and Utahmdashjoined the lawsuit as intervenor-petitioners as did the Ute Indian Tribe Environmental groups joined as intervenor-respondents


order postponing effective date June 24 2015)

On the effective date for the US Bureau of Land Managementrsquos (BLMrsquos) 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 BLMrsquos 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




Wyoming v United States Department of the Interior No 215-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 ldquotroubled by the paucity of evidentiary supportrdquo for the regulations and calling the final rule ldquoa remedy in search of harmrdquo The court also found merit in the Ute Indian Tribersquos 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 US Department of the Interior


Southern Ute Indian Tribe v US Department of the Interior No 15-cv-


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 Managementrsquos final rule regulating hydraulic fracturing on federal and Indian lands unlawfully interfered with the Tribersquos powers under the Indian Reorganization Act and the Indian Mineral Development Act

Southern Ute Indian Tribe v US Department of the Interior No 15-cv-01303 (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 BLMrsquos hydraulic fracturing regulations from going into effect The court found that the Tribersquos assertion of a ldquoconceptual or philosophical harmrdquo 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 Tribersquos delay in seeking relief

Southern Ute Indian Tribe v US Department of the Interior No 15-

cv-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


Dueling v Devon Energy Corp No 14-11177 (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 LP (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 plaintiffsrsquo request to amend their complaint to allege misidentification and tolling of the statute of limitations The Fifth Circuit said plaintiffsrsquo 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


State ex rel Walker v Husted No 2015-1371 (Ohio complaint for writ of

mandamus filed Aug 2015) (opinion Sept 2015)

The Ohio Supreme Court affirmed the Ohio Secretary of Statersquos 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 Statersquos rationales for invalidating the measures was that they were in conflict with the statersquos 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 Statersquos second rationalemdashthat the measures did not satisfy the threshold requirements for a ldquocharter initiativerdquomdashand found that this rationale provided a basis for invalidating the measures

State ex rel Youngstown v Mahoning County Board of Elections


State ex rel Youngstown v Mahoning County Board of Elections No 2015-

1422 (Ohio opinion Sept 2015)

The Ohio Supreme Court reversed a county board of electionsrsquo 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 measuresrsquo substantive terms

Colorado Springs Citizens for Community Rights v City of Colorado

Springs


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 Springsrsquo ldquosingle-subject rulerdquo an ordinance requiring that citizen-initiated proposals to amend the Cityrsquos charter contain only one subject The Cityrsquos 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 Coloradorsquos Municipal Home Rule Act and the Cityrsquos 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 single-subject rule did not constitute a ldquosubstantive limitationrdquo on the power to amend the charter

Gorsline v Board of Supervisors of Fairfield Township


Gorsline v Board of Supervisors of Fairfield Township No 1735 CD 2014 (Pa Commw Ct Sept 14

2015)

The Pennsylvania Commonwealth Court reversed a trial court decision that set aside Fairfield Townshiprsquos 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 ldquopublic service facilityrdquomdasha use expressly allowed in the district The Townshiprsquos 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 neighborhoodrsquos health and safety in the absence of any evidence other than concerns raised by neighboring landowners

Dineacute Citizens Against Ruining Our Environment v Jewell


Dineacute Citizens Against Ruining Our Environment v Jewell No 115-cv-

00209 (DNM 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 Managementrsquos (BLMrsquos) 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 plaintiffsrsquo arguments that environmental impact statements (EISs) were required for the applications for permits to drill (APDs) or that the APDs could not be ldquotieredrdquo 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


00209 (DNM Sept 16 2015)

The court subsequently denied plaintiffsrsquo motion for an injunction pending appeal

Environmental Defense Center v Bureau of Safety and Environmental

Enforcement


Environmental Defense Center v Bureau of Safety and Environmental Enforcement No 214-cv-09281 (CD

Cal Aug 14 2015)

In the Environmental Defense Centerrsquos 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


Town of Abita Springs v Welsh No 637209 (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 Pennsylvaniarsquos Future v Pennsylvania


Citizens for Pennsylvaniarsquos 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 EampP Onshore LLC The authorization permits Anadarko to undertake activities in a state forest The Board found that one of the organizationrsquos 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 amp Gas Association v Pennsylvania



No 321 MD 2015 (Pa Commw Ct filed June 19 2015)

The Pennsylvania Independent Oil amp 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 Courtrsquos 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


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 $50400 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


Norberg v Cottonwood Natural Resources LTD No 815CV71 (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 $144000 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 agreementrsquos offer rejecting their argument that the parties intended to incorporate the letter agreement into their final lease

Trinity Valley School v Chesapeake Operating


Trinity Valley School v Chesapeake Operating Inc No 313-cv-01082-K

(ND 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 LLC and Chesapeake Exploration LLC (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


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 $36000 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 homeownersrsquo nuisance suit was ldquoa de facto attempt to repudiate hellip part of their bargainrdquo and that such a result would be unconscionable

Seneca Resources Corp v S amp T Bank


Seneca Resources Corp v S amp T Bank No 2057 WDA 2014 (Pa


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 25000 acres were covered by the lease The mineral rights owner contended that the lease should be terminated with respect to 3131 acres of ldquounoperatedrdquo land The Superior Court ruled that the operable and unoperable acreages were not severable under the lease and said that the leasersquos 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 Pennsylvaniarsquos implied covenant to develop and produce oil and gas on the unoperated acreage

ConocoPhillips Co v Vaquillas Unproven Minerals


ConocoPhillips Co v Vaquillas Unproven Minerals Ltd No 04-15-

00066-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 wellsmdash40 acresmdashthan was set forth in the leases The Court of Appeals said the retained acreage clause was ldquoclear precise and unequivocalrdquo and that the only dispute remaining related to calculating the number of acres the lessee could retain

Pfeifer v Westmoreland County Tax Claim Bureau


Pfeifer v Westmoreland County Tax Claim Bureau No 1346 CD 2014

(Pa Commw Ct Sept 1 2015)

The Pennsylvania Commonwealth Court upheld a lower courtrsquos 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 ldquoasserted failure to discover the loss was a result of their failure to exercise due diligencerdquo

Lightning Oil Co v Anadarko EampP Onshore LLC


Lightning Oil Co v Anadarko EampP 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 EampP Onshore LLC (Anadarko) The court found that the surface estate owner of the land overlying Lightningrsquos mineral estate had authorized Anadarko to drill through its property to Anadarkorsquos adjacent mineral estate The court rejected Lightningrsquos claim that this constituted a trespass noting that a surface estate owner controlled ldquothe matrix of the underlying earthrdquo and that Lightning did not ldquoown or control the earth surrounding any hydrocarbon molecules that may lie within the boundariesrdquo of its lease The court affirmed the trial courtrsquos 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


Dewey Homes and Investment Properties LLC v Delaware

Riverkeeper Network No 2015-10393 (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 ldquofalse misleading or inflammatory public statementsrdquo and presenting ldquoimproper and unfoundedrdquo and ldquowrongful andor unsupportedrdquo affidavits before a local zoning board The landowners alleged that the defendantsrsquo ldquoshamrdquo activities had caused their leaseholders to suspend or stop development of the leases and had had a ldquodampening effectrdquo 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 plaintiffsrsquo claims and failed to associate allegations with specific defendants The court said that the plaintiffs could file an amended complaint within 20 days





Riverkeeper Network No 2015-10393 (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 ldquopower and resourcesrdquo to ldquoharass and deterrdquo the lessors ldquoin their use of and reliance upon the leases and the proper use of zoning procedures promulgation of zoning regulations and zoning adjudicating administrative proceedingsrdquo The amended complaint alleged that the plaintiffsrsquo substantive challenges to zoning permits and to a zoning ordinance were intended to prevent any activity pursuant to the plaintiffsrsquo 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


Harper v Department of the Army Huntington District Corps of

Engineers No 214-cv-986 (SD 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 ldquointer-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agencyrdquo The magistrate said the communications qualified as ldquointer-agency or intra-agencyrdquo 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 amp Marine Insurance Co v Petroplex Energy Inc


St Paul Fire amp Marine Insurance Co v Petroplex Energy Inc No 11-13-

00104-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 insurerrsquos contention that the well had ceased to be an insured well because the policyholder had begun activities that changed the well from a ldquoproducingrdquo well to a ldquoreworkingrdquo or ldquoworkoverrdquo 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 LLC


Kerns v Chesapeake Exploration LLC No 115-cv-346 (ND 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 LLC 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 LLC No 115-cv-346 (ND 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 NY


Lang v Town of Tusten NY No 14-cv-4136 (SDNY 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 plaintiffrsquos garage read ldquoLetrsquos get frackrsquon just pass the gasrdquo and the plaintiff later applied to put up a sign that said ldquoThe Narrowsburg Inn Welcomes American Gas hellip American Jobsrdquo 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


Osage Producers Association v Jewell No 15-cv-469 (ND 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 ldquotacitly deniedrdquo 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 ldquotacit denialrdquo of a permit

Environmental Integrity Project RCRA Notice of Intent to Sue


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


Morabito v Martens No 3265-15 (NY 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 DECrsquos actions denied him his due process rights The petitioner said that the environmental impact statements prepared by DEC ldquohave 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 Yorkrdquo In August 2015 the lawsuit was transferred from Allegany County where the landownerrsquos property was located to Albany County

Cabot Oil amp Gas Corp v Pennsylvania Department of Environmental

Protection


Cabot Oil amp 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 amp 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 2500 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 DEPrsquos 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




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 ldquopremature arbitrary and unwarrantedrdquo asserting that neither PA DEP nor WPX had completed their investigations and that the water quality conditions were ldquonaturally resolvingrdquo 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) LP


Sciscoe v Enbridge Gathering (North Texas) LP No 07-13-00391-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 homeownersrsquo 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 amp Resources LLC v Cecil Township Zoning

Hearing Board



Zoning Hearing Board No 223 CD 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 Townshiprsquos 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


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 Illinoisrsquos 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 plaintiffsrsquo view that courts should presume irreparable harm where defendants failed to follow rulemaking requirements The court found that the plaintiffsrsquo 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 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



The court ruled that the Town did not have the legal right to rely on the parishrsquos zoning to prevent the project

Harvilchuck v Department of Environmental Protection


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 permitrsquos effect on him until he received a written copy of the permit from the Pennsylvania Department of Environmental Protection

Kiskadden v Pennsylvania


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 homeownerrsquos challenge to a Pennsylvania Department of Environmental Protection determination that Range Resources-Appalachia LLCrsquos natural gas drilling activities did not cause contamination in a water supply well on his property The homeownerrsquos water well as located approximate a half-mile from the Range Resourcesrsquo 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


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 Californiarsquos 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 Californiarsquos Division of Oil Gas and Geothermal Resources in cooperation with the United States Environmental Protection Agency The emergency regulations addressed DOGGRrsquos failure to enforce the SDWArsquos 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 plaintiffsrsquo ldquogeneral propositionsrdquo 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 ldquocosts and strain on Sate resourcesrdquo if the state were required to commence individual enforcement actions against up to 6100 wells would be ldquosubstantial and almost certain to occurrdquo The court found that an injunction would not result in ldquoorderly or effectiverdquo enforcement of Safe Drinking Water Act

United States v Hardrock Excavating LLC


United States v Hardrock Excavating LLC No 113-cr-113

(ND 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 companyrsquos owner previously pleaded guilty and was sentenced to 28 months in prison The company was required to pay a community service payment of $25000 to be split between Friends of the Mahoning River and Midwest Environmental Enforcement Association and to pay a fine of $75000

North Dakota Industrial Commission v Alturas Energy LLC


North Dakota Industrial Commission v Alturas Energy LLC No 23514 (ND Indus Commrsquon July

28 2015)

The North Dakota Industrial Commission (Commission) issued an order requiring Alturas Energy LLC to pay $900000 in fines for violations at multiple well sites Alturas did not respond to the complaint which was served in April 2015 so the complaintrsquos 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 $625000 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


In re Chevron Appalachia LLC (Pa Deprsquot of Envtl Prot consent

assessment of civil penalty May 21 2015)

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 $93955279

May v BHP Billiton Petroleum (Fayetteville) LLC


May v BHP Billiton Petroleum (Fayetteville) LLC No 413-cv-494

(ED 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 BHPrsquos 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 landownersrsquo property was located be operated as units and a well had been drilled in each unit The court said that this position ldquowould allow lessees with minimal development to hold swathes of the Statersquos natural resources for extended periodsrdquo eliminating protections that Arkansas law had ldquolong affordedrdquo to mineral lessors The court also said such a result would ignore the Arkansas legislaturersquos intention to promote development of the statersquos natural gas

Mason v Range ResourcesndashAppalachia LLC


Mason v Range ResourcesndashAppalachia LLC No 12-cv-369 (WD

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 ResourcesndashAppalachia LLC was not a novation of the 1961 lease that extinguished and replaced it

Dodd v Croskey


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 statersquos Dormant Mineral Act by filing a claim to preserve within 60 days after a surface ownerrsquos 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 ldquoAffidavit Preserving Mineralsrdquo The Supreme Court rejected the surface rightsrsquo owners lsquo argument that the affidavit did not preclude a declaration of abandonment because it was filed after their notice The court deemed the mineral rights holderrsquos filing sufficient to preclude a declaration that the mineral interests were abandoned

Eagle Energy Production LLC v Corporation Commission of the State of

Oklahoma


Eagle Energy Production LLC v Corporation Commission of the State of Oklahoma No 112165

(Okla Civ App Dec 5 2014)

The Oklahoma Court of Civil Appeals denied an appeal of the Oklahoma Corporation Commissionrsquos 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 orderrsquos issuance and the owner did not step into its lesseersquos shoes The court said that the pooling applicant should have implemented ldquoclean-up poolingrdquo after the lease expired to include the owner in the pooling order

Cox v Kimble dba Red Hill Development


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 leasersquos habendum clause from 40 acres to 100 acres The Court of Appeals also affirmed the trialrsquos denial of the lesseersquos claim of adverse possession and upheld the trial courtrsquos finding that the lessorrsquos quiet title action was not time-barred

Gawenis v Arkansas Oil amp Gas Commission


Gawenis v Arkansas Oil amp 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 ownerrsquos unleased interests in a 069-acre mineral tract into a 5154-acre drilling unit The court rejected the ownerrsquos 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



Management No 215-cv-4378 (CD Cal filed June 10 2015)

Two environmental groups filed a lawsuit in federal court in California challenging the environmental review conducted by the US Bureau of Land Management (BLM) for the resource management plan for 400000 acres of public land and 12 million acres of subsurface mineral estate ldquoat the epicenter of oil and gas drilling in Californiardquo 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 US Army Corps of Engineers


Town of Abita Springs v US Army Corps of Engineers No 15-451 (ED

La filed Feb 12 2015)

The Town of Abita Springs filed an action against the US 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 amp 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 amp Gas Permits


In re Wind River Oil amp 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 EPArsquos 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 permitrsquos requirements would be too costly




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 ldquoprojectrdquo or ldquoprogramrdquo DOGGR could not use the EIR to support any subsequent program activities or project approvals

Looney v Chesapeake Energy Corp


Looney v Chesapeake Energy Corp No 215-cv-2108 (WD 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



Matter of Sierra Club v Village of Painted Post No 151 (NY Nov 19

2015)

The New York Court of Appeals revived a lawsuit challenging the Village of Painted Postrsquos compliance with the State Environmental Quality Review Act in connection with the Villagersquos 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 ldquofilling stationrdquo 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 ldquo[t]he number of people who are affected by the challenged action is not dispositive of standingrdquo and that the residentrsquos allegations that increased train noise kept him awake at night were sufficient to confer standing

Brown v Access Midstream Partners LP


Brown v Access Midstream Partners LP No 314-0591 (MD

Pa Sept 30 2015)

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 Pennsylvaniarsquos 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 LP (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 plaintiffsrsquo allegations that defendants entered into unlawful agreements to charge inflated gathering and transportation costs to disguise the true nature of reductions in the plaintiffsrsquo gas royalties went beyond a simple breach of contract claim and into the realm of RICO The court also found that the landownersrsquo 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


SWN Production Co v Edge No 515-cv-00108 (ND W Va Sept 30

2015)

The federal district court for the Northern District of West Virginia granted an oil and gas lesseersquos motion for a preliminary injunction requiring property owners to allow the lessee to enter their property The court was not persuaded by the property ownersrsquo argument that the plaintiffrsquos 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 plaintiffrsquos oil and gas operations which were scheduled to begin ldquoin the very near futurerdquo Noting West Virginiarsquos 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


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 grantorsrsquo 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 ldquoheirs and assignsrdquo The court also said it was ldquoof no momentrdquo that the grantees and their successors had treated the oil gas and mineral rights as their own

Cole v EP Energy Co EampP LP


Cole v EP Energy Co EampP LP No 415-cv-02844 (SD 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 ownerrsquos on-site company man The complaint said that the on-site 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


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 ldquohuge increase in the number and severity of earthquakesrdquo in Oklahoma and southern Kansas Sierra Club contended that the companiesrsquo 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



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 EQTrsquos 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 amp 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 margaretbarryaportercom

To speak with an Arnold amp Porter attorney about these issues contact

Michael D Daneker Partner

Washington DC

tel +1 2029425177

MichaelDanekeraportercom

Lawrence E Culleen Partner

Washington DC

tel +1 2029425477

LawrenceCulleenaportercom

Matthew J Douglas Partner

Denver

tel +1 3038632315

MatthewDouglasaportercom

Hydraulic Fracturing Case Chart

Government

Enforcement

Actions

Civil Tort Actions

Citizen Suits

Challenges to State

and Federal Laws

and Regulations

Challenges to

Municipal Actions

Challenges to

Agency Actions

Oil amp Gas Lease

Disputes

copy 2015 Arnold amp Porter LLP

Date last updated December 2 2015

For more information about Arnold amp Porter LLPrsquos hydraulic fracturing practice click here

Other Land Use

and Property

Rights Disputes

Defamation and

SLAPP Suits

Freedom of

Information

Lawsuits

Contract Disputes

Constitutional

Claims Other Disputes

Suits Against

Project Opponents

Civil Tort Actions

























Civil Tort Actions


































Citizen Suits
















































































































































































268 SW3d 1 (Tex 2008) +
























LLC Nos 12-4457 12-4466 12-4517 13-3021 (6th Cir Oct 2013) +



















































































Contract Disputes

















Other Disputes


Antitrust





























Aug 17 2012)










App July 3 2013)






Aug 29 2013)



(Colo Apr 7 2014)



20 2015)








(WDNY June 14 2013)



(WDNY June 27 2013)


Maring v Nalbone



27 2009)





2010)



















Pa Nov 15 2010)




2012)









2014)






2014)


















2015)



2015)






2015














22 2010)













Nov 14 2011)








Tex Dec 9 2011)















June 19 2014)




















29 2012)





2013)





8 2011)



2013)
















2012)





filed Jan 18 2011)



March 29 2012)








Co Feb 21 2012)



2013)






(NY Aug 29 2013)



2014)






Oct 16 2014)













131 (NY June 30 2014)






2011)



















2011)




















SW3d 1 (Texas 2008)










2012)



2012)






















0196 (ND Tex Mar 4 2011)



0104 (ED Tex July 2 2012)





Nov 4 2009 No 10-4572 filed Dec 15 2010)





Pennsylvania



2011)






2011)








(Pa Apr 24 2013)



LLC




17 2012)





Jan 19 2012)












(NDNY Nov 15 2012)









2012)


















2012)























Dec 19 2013)
































2012)







2012)












April 16 2012)





Pa April 27 2012)



Pa Sept 5 2012)



411-CV-1425 (MD Pa Mar 25 2015)










Ct April 30 2012)






2011)



Co Jan 27 2012)



Co June 2012)









2013)








2013)











2011)





filed May 16 2012)





April 19 2012)





June 9 2011)










2012)





28 2012)












Rodriguez v Abruzzo



July 27 2012)



23 2013)



10 2014)



Rodriguez v Abruzzo











2014)















23 2012)





(WD Pa Sept 7 2012)



(3d Cir Sept 26 2013)










Jeffrey v Ryan



Oct 2 2012)












Sept 30 2013)













2013)



No 12-1405 (DC Cir Apr 3 2013)








13 2014)





(ND W Va Oct 25 2012)

























(ND W Va Jan 16 2013)



(ND W Va Jan 30 2013)




(ND W Va Jan 31 2013)








(ND W Va Feb 21 2013)



(ND W Va Apr 16 2013)







Div Oct 3 2014)






12 2013)








No 11-CV-00678 (ED Ark June 10 2013)









19 2012)



May 14 2012)



Aug 6 2012)



Oct 15 2012)





No 2010-3954 (Pa Ct Com Pl Mar 20 2013)





No 10-cv-0226 (June 29 2011)



No 11-8071 (10th Cir Mar 12 2013)





No 512-cv-49 (ND WVa Apr 10 2013)



19 2013)



6 2013)



2 2014)





912 CD 2012 (Pa Commw Ct Apr 9 2013)





No 13-cv-00360 (WD Pa Apr 4 2013)



No 13-2812 (3d Cir Aug 16 2013)





Mar 28 2013)

















2013-0465 (Ohio June 19 2013)



(Ohio Feb 17 2015)





filed Feb 15 2012)



12 2012)



22 2013)










2014)







Ct July 17 2014)














No 13-cv-00047 (D Utah Feb 13 2013)








order Oct 14 2014)









Sept 21 2015)





filed Feb 7 2011)



14 2013)









2014)























No 512-cv-00102 (ND W Va July 6 2012)



No 512-cv-00102 (ND W Va Apr 10 2013)












(Pa Nov 26 2013)








01661 (D Colo Feb 13 2013)



01661 (D Colo Apr 10 2013)








(NDNY Apr 18 2013)


Vavala v Hall








2011)



(ND W Va July 2011)



























2013)











US v XTO Energy Inc



Sept 18 2013)









2013)







Reece v AES Corp
















Ark Sept 26 2013)









29 2015)





2013)





Dec 10 2013)







US v Stinson



16 2014)





Va Dec 19 2013)





2013)






2013)



24 2014)



5 2014)





14 2014)





Jan 2014)

















Dec 20 2013)






Feb 2014)











Jan 15 2014)










June 8 2012)



27 2013)









17 2013)








2013)





(ND W Va Aug 21 2013)










4 2014)


Reep v North Dakota



Dec 26 2013)


Rolla v Tank











Ct App Nov 26 2013)
















2013)





2013)










20 2014)














2014)



























2014)






Dec 27 2013)


















00971 (WD Mich Sept 5 2013)





2013)





22 2013)









2014)



2014)
















2014)



132 (DND May 14 2014)





132 (DND June 13 2014)


















Protection







































Engineers



filed May 15 2014)



June 12 2014)




Production Wells










7 2014)




DOI-BLM-NV-B000-2014-0001-EA



DOI-BLM-NV-B000-2014-0001-EA (May 12 2014)





















Aug 21 2015)





25 2014)







24 2014)






























26 2013)






Commission










16 2014)





June 10 2014)







30 2014)





03 (EAB May 29 2014)


















6 2014)






28 2014)





filed June 10 2014)





June 17 2014)







Sept 1 2015)











filed June 16 2014)



Apr 20 2015)






June 12 2014)












filed June 10 2014)










2014)










CIV-13-1118-M (WD Okla July 21 2014)





2014)






(Colo June 30 2014)





40644 (5th Cir July 9 2014)














Solutions DJ LLC





17 2014)





Sept 10 2014)
















2014)





2014)












2014)











July 14 2014)










00338 (D Nev Sept 8 2014)





July 16 2014)















May 21 2013)




2013)








7 2015)













2014)








Pleas May 26 2015)







LaCroix v Snyder



























23 2014)





Va Oct 14 2014)





26 2014)






9 2015)









Aug 28 2014)

















2014)

















3931 (6th Cir July 2 2015)








Sept 4 2015)





Nov 5 2014)



19 2015)






















(WD Pa Oct 14 2015)



Protection







Protection










20 2014)

















filed Sept 19 2014)


Pollard v Quinn










filed Mar 26 2015)

















Sept 30 2015)








2015)




2015)

















Springs




2015)





2015)





00209 (DNM Aug 14 2015)



00209 (DNM Sept 16 2015)



Enforcement



Cal Aug 14 2015)
















Mason Well Service



2015)





Neb Sept 14 2015)










Aug 27 2015)




























23 2015)
















00104-CV (Tex Ct App Aug 31 2015)





Apr 27 2015)











filed Aug 18 2015)







26 2015)


Morabito v Martens






Protection











filed Aug 3 2015)





2015)



Hearing Board








Ct July 10 2015)













2015)





June 12 2015)















28 2015)















Pa July 27 2015)


Dodd v Croskey





Oklahoma








Ct App Feb 17 2015)





May 28 2015)



Management

























June 3 2015)





2015)





Pa Sept 30 2015)





2015)





Ct Oct 9 2015)





30 2015)







Ground (Oct 2015)



Protection








Washington DC

tel +1 2029425177



Washington DC

tel +1 2029425477



Denver

tel +1 3038632315


Civil Tort Actions

























Civil Tort Actions


































Citizen Suits
















































































































































































268 SW3d 1 (Tex 2008) +
























LLC Nos 12-4457 12-4466 12-4517 13-3021 (6th Cir Oct 2013) +



















































































Contract Disputes

















Other Disputes


Antitrust





























Aug 17 2012)










App July 3 2013)






Aug 29 2013)



(Colo Apr 7 2014)



20 2015)








(WDNY June 14 2013)



(WDNY June 27 2013)


Maring v Nalbone



27 2009)





2010)



















Pa Nov 15 2010)




2012)









2014)






2014)


















2015)



2015)






2015














22 2010)













Nov 14 2011)








Tex Dec 9 2011)















June 19 2014)




















29 2012)





2013)





8 2011)



2013)
















2012)





filed Jan 18 2011)



March 29 2012)








Co Feb 21 2012)



2013)






(NY Aug 29 2013)



2014)






Oct 16 2014)













131 (NY June 30 2014)






2011)



















2011)




















SW3d 1 (Texas 2008)










2012)



2012)






















0196 (ND Tex Mar 4 2011)



0104 (ED Tex July 2 2012)





Nov 4 2009 No 10-4572 filed Dec 15 2010)





Pennsylvania



2011)






2011)








(Pa Apr 24 2013)



LLC




17 2012)





Jan 19 2012)












(NDNY Nov 15 2012)









2012)


















2012)























Dec 19 2013)
































2012)







2012)












April 16 2012)





Pa April 27 2012)



Pa Sept 5 2012)



411-CV-1425 (MD Pa Mar 25 2015)










Ct April 30 2012)






2011)



Co Jan 27 2012)



Co June 2012)









2013)








2013)











2011)





filed May 16 2012)





April 19 2012)





June 9 2011)










2012)





28 2012)












Rodriguez v Abruzzo



July 27 2012)



23 2013)



10 2014)



Rodriguez v Abruzzo











2014)















23 2012)





(WD Pa Sept 7 2012)



(3d Cir Sept 26 2013)










Jeffrey v Ryan



Oct 2 2012)












Sept 30 2013)













2013)



No 12-1405 (DC Cir Apr 3 2013)








13 2014)





(ND W Va Oct 25 2012)

























(ND W Va Jan 16 2013)



(ND W Va Jan 30 2013)




(ND W Va Jan 31 2013)








(ND W Va Feb 21 2013)



(ND W Va Apr 16 2013)







Div Oct 3 2014)






12 2013)








No 11-CV-00678 (ED Ark June 10 2013)









19 2012)



May 14 2012)



Aug 6 2012)



Oct 15 2012)





No 2010-3954 (Pa Ct Com Pl Mar 20 2013)





No 10-cv-0226 (June 29 2011)



No 11-8071 (10th Cir Mar 12 2013)





No 512-cv-49 (ND WVa Apr 10 2013)



19 2013)



6 2013)



2 2014)





912 CD 2012 (Pa Commw Ct Apr 9 2013)





No 13-cv-00360 (WD Pa Apr 4 2013)



No 13-2812 (3d Cir Aug 16 2013)





Mar 28 2013)

















2013-0465 (Ohio June 19 2013)



(Ohio Feb 17 2015)





filed Feb 15 2012)



12 2012)



22 2013)










2014)







Ct July 17 2014)














No 13-cv-00047 (D Utah Feb 13 2013)








order Oct 14 2014)









Sept 21 2015)





filed Feb 7 2011)



14 2013)









2014)























No 512-cv-00102 (ND W Va July 6 2012)



No 512-cv-00102 (ND W Va Apr 10 2013)












(Pa Nov 26 2013)








01661 (D Colo Feb 13 2013)



01661 (D Colo Apr 10 2013)








(NDNY Apr 18 2013)


Vavala v Hall








2011)



(ND W Va July 2011)



























2013)











US v XTO Energy Inc



Sept 18 2013)









2013)







Reece v AES Corp
















Ark Sept 26 2013)









29 2015)





2013)





Dec 10 2013)







US v Stinson



16 2014)





Va Dec 19 2013)





2013)






2013)



24 2014)



5 2014)





14 2014)





Jan 2014)

















Dec 20 2013)






Feb 2014)











Jan 15 2014)










June 8 2012)



27 2013)









17 2013)








2013)





(ND W Va Aug 21 2013)










4 2014)


Reep v North Dakota



Dec 26 2013)


Rolla v Tank











Ct App Nov 26 2013)
















2013)





2013)










20 2014)














2014)



























2014)






Dec 27 2013)


















00971 (WD Mich Sept 5 2013)





2013)





22 2013)









2014)



2014)
















2014)



132 (DND May 14 2014)





132 (DND June 13 2014)


















Protection







































Engineers



filed May 15 2014)



June 12 2014)




Production Wells










7 2014)




DOI-BLM-NV-B000-2014-0001-EA



DOI-BLM-NV-B000-2014-0001-EA (May 12 2014)





















Aug 21 2015)





25 2014)







24 2014)






























26 2013)






Commission










16 2014)





June 10 2014)







30 2014)





03 (EAB May 29 2014)


















6 2014)






28 2014)





filed June 10 2014)





June 17 2014)







Sept 1 2015)











filed June 16 2014)



Apr 20 2015)






June 12 2014)












filed June 10 2014)










2014)










CIV-13-1118-M (WD Okla July 21 2014)





2014)






(Colo June 30 2014)





40644 (5th Cir July 9 2014)














Solutions DJ LLC





17 2014)





Sept 10 2014)
















2014)





2014)












2014)











July 14 2014)










00338 (D Nev Sept 8 2014)





July 16 2014)















May 21 2013)




2013)








7 2015)













2014)








Pleas May 26 2015)







LaCroix v Snyder



























23 2014)





Va Oct 14 2014)





26 2014)






9 2015)









Aug 28 2014)

















2014)

















3931 (6th Cir July 2 2015)








Sept 4 2015)





Nov 5 2014)



19 2015)






















(WD Pa Oct 14 2015)



Protection







Protection










20 2014)

















filed Sept 19 2014)


Pollard v Quinn










filed Mar 26 2015)

















Sept 30 2015)








2015)




2015)

















Springs




2015)





2015)





00209 (DNM Aug 14 2015)



00209 (DNM Sept 16 2015)



Enforcement



Cal Aug 14 2015)
















Mason Well Service



2015)





Neb Sept 14 2015)










Aug 27 2015)




























23 2015)
















00104-CV (Tex Ct App Aug 31 2015)





Apr 27 2015)











filed Aug 18 2015)







26 2015)


Morabito v Martens






Protection











filed Aug 3 2015)





2015)



Hearing Board








Ct July 10 2015)













2015)





June 12 2015)















28 2015)















Pa July 27 2015)


Dodd v Croskey





Oklahoma








Ct App Feb 17 2015)





May 28 2015)



Management

























June 3 2015)





2015)





Pa Sept 30 2015)





2015)





Ct Oct 9 2015)





30 2015)







Ground (Oct 2015)



Protection








Washington DC

tel +1 2029425177



Washington DC

tel +1 2029425477



Denver

tel +1 3038632315


Civil Tort Actions


































Citizen Suits
















































































































































































268 SW3d 1 (Tex 2008) +
























LLC Nos 12-4457 12-4466 12-4517 13-3021 (6th Cir Oct 2013) +



















































































Contract Disputes

















Other Disputes


Antitrust





























Aug 17 2012)










App July 3 2013)






Aug 29 2013)



(Colo Apr 7 2014)



20 2015)








(WDNY June 14 2013)



(WDNY June 27 2013)


Maring v Nalbone



27 2009)





2010)



















Pa Nov 15 2010)




2012)









2014)






2014)


















2015)



2015)






2015














22 2010)













Nov 14 2011)








Tex Dec 9 2011)















June 19 2014)




















29 2012)





2013)





8 2011)



2013)
















2012)





filed Jan 18 2011)



March 29 2012)








Co Feb 21 2012)



2013)






(NY Aug 29 2013)



2014)






Oct 16 2014)













131 (NY June 30 2014)






2011)



















2011)




















SW3d 1 (Texas 2008)










2012)



2012)






















0196 (ND Tex Mar 4 2011)



0104 (ED Tex July 2 2012)





Nov 4 2009 No 10-4572 filed Dec 15 2010)





Pennsylvania



2011)






2011)








(Pa Apr 24 2013)



LLC




17 2012)





Jan 19 2012)












(NDNY Nov 15 2012)









2012)


















2012)























Dec 19 2013)
































2012)







2012)












April 16 2012)





Pa April 27 2012)



Pa Sept 5 2012)



411-CV-1425 (MD Pa Mar 25 2015)










Ct April 30 2012)






2011)



Co Jan 27 2012)



Co June 2012)









2013)








2013)











2011)





filed May 16 2012)





April 19 2012)





June 9 2011)










2012)





28 2012)












Rodriguez v Abruzzo



July 27 2012)



23 2013)



10 2014)



Rodriguez v Abruzzo











2014)















23 2012)





(WD Pa Sept 7 2012)



(3d Cir Sept 26 2013)










Jeffrey v Ryan



Oct 2 2012)












Sept 30 2013)













2013)



No 12-1405 (DC Cir Apr 3 2013)








13 2014)





(ND W Va Oct 25 2012)

























(ND W Va Jan 16 2013)



(ND W Va Jan 30 2013)




(ND W Va Jan 31 2013)








(ND W Va Feb 21 2013)



(ND W Va Apr 16 2013)







Div Oct 3 2014)






12 2013)








No 11-CV-00678 (ED Ark June 10 2013)









19 2012)



May 14 2012)



Aug 6 2012)



Oct 15 2012)





No 2010-3954 (Pa Ct Com Pl Mar 20 2013)





No 10-cv-0226 (June 29 2011)



No 11-8071 (10th Cir Mar 12 2013)





No 512-cv-49 (ND WVa Apr 10 2013)



19 2013)



6 2013)



2 2014)





912 CD 2012 (Pa Commw Ct Apr 9 2013)





No 13-cv-00360 (WD Pa Apr 4 2013)



No 13-2812 (3d Cir Aug 16 2013)





Mar 28 2013)

















2013-0465 (Ohio June 19 2013)



(Ohio Feb 17 2015)





filed Feb 15 2012)



12 2012)



22 2013)










2014)







Ct July 17 2014)














No 13-cv-00047 (D Utah Feb 13 2013)








order Oct 14 2014)









Sept 21 2015)





filed Feb 7 2011)



14 2013)









2014)























No 512-cv-00102 (ND W Va July 6 2012)



No 512-cv-00102 (ND W Va Apr 10 2013)












(Pa Nov 26 2013)








01661 (D Colo Feb 13 2013)



01661 (D Colo Apr 10 2013)








(NDNY Apr 18 2013)


Vavala v Hall








2011)



(ND W Va July 2011)



























2013)











US v XTO Energy Inc



Sept 18 2013)









2013)







Reece v AES Corp
















Ark Sept 26 2013)









29 2015)





2013)





Dec 10 2013)







US v Stinson



16 2014)





Va Dec 19 2013)





2013)






2013)



24 2014)



5 2014)





14 2014)





Jan 2014)

















Dec 20 2013)






Feb 2014)











Jan 15 2014)










June 8 2012)



27 2013)









17 2013)








2013)





(ND W Va Aug 21 2013)










4 2014)


Reep v North Dakota



Dec 26 2013)


Rolla v Tank











Ct App Nov 26 2013)
















2013)





2013)










20 2014)














2014)



























2014)






Dec 27 2013)


















00971 (WD Mich Sept 5 2013)





2013)





22 2013)









2014)



2014)
















2014)



132 (DND May 14 2014)





132 (DND June 13 2014)


















Protection







































Engineers



filed May 15 2014)



June 12 2014)




Production Wells










7 2014)




DOI-BLM-NV-B000-2014-0001-EA



DOI-BLM-NV-B000-2014-0001-EA (May 12 2014)





















Aug 21 2015)





25 2014)







24 2014)






























26 2013)






Commission










16 2014)





June 10 2014)







30 2014)





03 (EAB May 29 2014)


















6 2014)






28 2014)





filed June 10 2014)





June 17 2014)







Sept 1 2015)











filed June 16 2014)



Apr 20 2015)






June 12 2014)












filed June 10 2014)










2014)










CIV-13-1118-M (WD Okla July 21 2014)





2014)






(Colo June 30 2014)





40644 (5th Cir July 9 2014)














Solutions DJ LLC





17 2014)





Sept 10 2014)
















2014)





2014)












2014)











July 14 2014)










00338 (D Nev Sept 8 2014)





July 16 2014)















May 21 2013)




2013)








7 2015)













2014)








Pleas May 26 2015)







LaCroix v Snyder



























23 2014)





Va Oct 14 2014)





26 2014)






9 2015)









Aug 28 2014)

















2014)

















3931 (6th Cir July 2 2015)








Sept 4 2015)





Nov 5 2014)



19 2015)






















(WD Pa Oct 14 2015)



Protection







Protection










20 2014)

















filed Sept 19 2014)


Pollard v Quinn










filed Mar 26 2015)

















Sept 30 2015)








2015)




2015)

















Springs




2015)





2015)





00209 (DNM Aug 14 2015)



00209 (DNM Sept 16 2015)



Enforcement



Cal Aug 14 2015)
















Mason Well Service



2015)





Neb Sept 14 2015)










Aug 27 2015)




























23 2015)
















00104-CV (Tex Ct App Aug 31 2015)





Apr 27 2015)











filed Aug 18 2015)







26 2015)


Morabito v Martens






Protection











filed Aug 3 2015)





2015)



Hearing Board








Ct July 10 2015)













2015)





June 12 2015)















28 2015)















Pa July 27 2015)


Dodd v Croskey





Oklahoma








Ct App Feb 17 2015)





May 28 2015)



Management

























June 3 2015)





2015)





Pa Sept 30 2015)





2015)





Ct Oct 9 2015)





30 2015)







Ground (Oct 2015)



Protection








Washington DC

tel +1 2029425177



Washington DC

tel +1 2029425477



Denver

tel +1 3038632315





























































































































































































































































































































































































Documents

Hydraulic fracturing case chart - Arnold & Porter LLP