West Virginia Highlands Voice

By John McFerrin

The battle by the West Virginia Highlands Conservancy, the Friends of Blackwater and Cordie Hudkins (a retired Chief of the West Virginia State Park System in the West Virginia Division of Natural Resources) will be heard by the West Virginia Supreme Court of Appeals on Wednesday, September 22, 2010.

The action would also affect all other state parks as well, potentially clarifying the law to make it clear that state law prohibits oil and gas drilling in state parks. This is significant not only for Chief Logan State Park but for the other parks where West Virginia does not own the mineral rights–Babcock, Blackwater Falls, Canaan Valley, Cedar Creek, Pipestem, Twin Falls and Watoga.

The controversy began in late 2007, when Cabot Oil and Gas applied to the Department of Environmental Protection for a “well work permit” to drill within Chief Logan State Park. A “well work permit” normally addresses such things as roads to the well site, plans for casing the well, plans for sediment control, and other technical aspects of the well.

The Department of Environmental Protection denied the application for a well work permit based upon a statute that had always been considered to prohibit gas wells in State Parks.

The denial became controversial because protection of the Parks is most directly the responsibility of the Department of Natural Resources, not the Department of Environmental Protection. Cabot Oil and Gas, as well as the mineral owner Lawson Heirs, contend that only the Department of Natural Resources can enforce this statute. Cabot and the Lawson Heirs also contend that it has always been the policy of the Department of Natural Resources to allow gas well drilling on State Parks. They point to several instances of gas wells which are located on State Parks. From this, they conclude that the Department of Natural Resources must not object to the drilling of gas wells in Parks.

Based upon these arguments, in June, 2009, the Circuit Court of Logan County reversed the decision of the Department of Environmental Protection and ordered that the well work permit be issued. The Department has not yet issued the permit and no work has yet begun in the Park.

The Circuit Court in Logan based his ruling, in part, upon his understanding that the Department of Natural Resources had frequently allowed gas well drilling in State Parks. There is even an existing gas well in what is now Chief Logan State Park. From this, it is easy to infer that the DNR does not believe that such drilling was illegal.

It now appears that his understanding was based upon incomplete information. There are several instances of gas wells located on State Park land. Those wells were, however, drilled before the land became part of a State Park. This is true of the well in Chief Logan. The Department of Natural Resources routinely denies requests to drill on State Parks. It does so because it believes that drilling for oil or gas on a State Park would be illegal.

Now Mr. Hudkins and the citizens groups are going back to Court in order to make sure that the Court has all the facts necessary to make a correct ruling. They believe that, were the Court presented with all the facts, it would determine that oil and gas drilling on all State Parks-including Chief Logan-is prohibited by law.

The West Virginia Department of Environmental Protection and the West Virginia Division of Natural Resources both oppose the ruling and have appealed as well. The West Virginia Chapter of the Sierra Club has also intervened in the case; it is appealing, seeking the same result as the West Virginia Highlands Conservancy, Friends of Blackwater, and Mr. Hudkins.

The case has drawn the attention of industry interest groups as well. The West Virginia Farm Bureau has filed a Motion for Leave to File Brief as Amicus Curiae. Translated literally as “friend of the court”, Amicus Curiae is a legal term for a person or entity which believes it has some information that would help the Court make a wise decision. According to its filing, the Farm Bureau is a “grassroots organization that provides training, education, information, and economic services to its members.” It seeks to protect “the rights and interests of every landowner in West Virginia regarding the sanctity and integrity of real property deeds and the conveyance thereof.” It favors drilling in the Park.

The West Virginia Oil and Natural Gas Association has also filed a Motion for Leave to File Brief as Amicus Curiae. It wishes to make sure that the Court appreciates the importance of private property rights, particularly the reservation of mineral rights. It also favors drilling in the Park.

Court convenes at 10:00 a.m. although this case may not be the first on the docket. Arguments are broadcast on the internet.

To learn how to watch go to http://www.state.wv.us/wvsca/Webcast.htm

Note: The West Virginia Highlands Conservancy needs money to pay ongoing litigation expenses. Any donations may be sent to West Virginia Highlands Conservancy at P. O. Box 306, Charleston, WV 25321.