CHARLESTON — Not content to let a lawsuit challenging West Virginia’s natural gas unitization/forced pooling law be filed in the state’s court system, the commission charged with implementing the new law is taking the matter to a higher power. 

Attorneys representing the West Virginia Oil and Natural Gas Conservation Commission filed an appeal Dec. 12 of a partial ruling by the U.S. District Judge John Bailey with the U.S. Court of Appeals for the Fourth Circuit. 

Bailey issued a stay Dec. 1 of a court case first brought by Bethany residents Scott Sonda and Brian Corwin in May challenging Senate Bill 694, dealing with the property rights of surface owners as it relates to drilling for natural gas and horizontal wells. 

The federal court case was stayed to give attorneys for Sonda and Corwin time to file a lawsuit against the Oil and Natural Gas Conservation Commission within the state Department of Environmental Protection in Kanawha County Circuit Court to address the issues Sonda and Corwin have with the state law. 

In his Dec. 1 order, Bailey dismissed parts of Sonda and Corwin’s amended complaint alleging that SB 694 violates both the U.S. and state constitutions. Bailey also granted a motion dismissing West Virginia Attorney General Patrick Morrisey from the lawsuit.  

Count III alleging that SB 694 is a violation of U.S. antitrust laws was tossed by Bailey, who said that the state can’t be in violation of antitrust laws. Count IV, alleging that the law violates constitutional provision against passing retroactive laws, was dismissed because that provision applies to criminal laws, not civil. Count V, alleging that the law violates constitutional provisions regarding the taking of private property, also was dismissed. 

But Bailey abstained from counts I and II of the amended complaint. Count 1 alleges that SB 694 violates the Fifth Amendment of the U.S. Constitution prohibiting the taking of property without just compensation. Count II alleges the law violates the due process provisions of the U.S. Constitution. 

“…This Court will abstain from ruling on the issues presented by this case,” Bailey wrote. “This action will be stayed so that plaintiffs may present their state law issues to state court. In the event that the state courts do not resolve this case under state law, plaintiffs will be permitted to seek a ruling on the federal issues in the Court.” 

Sonda and Corwin originally filed their lawsuit in the U.S. District Court for the Northern District of West Virginia against Gov. Jim Justice, but Bailey issued an order Sept. 9 granting a motion to dismiss the governor. Sonda and Corwin filed an amended lawsuit later that month against the DEP, the Oil and Gas Conservation Commission and Attorney General Patrick Morrisey. 

SB 694, signed into law in March, sets new application requirements for the combination of the tracts for oil and natural gas drilling by operators of horizontal well units. Among other provisions, it requires horizontal well units consisting of two or more tracts to get agreements from the mineral rights owners for at least 75 percent of the net acreage when it comes to interest from the royalties collected. 

The law also sets requirements for how non-consenting royalty holders get paid. Decisions and disputes between property owners would be heard by the Oil and Gas Conservation Commission.