You probably can refuse (or maybe block) a horizontal well on your land

Do you own the coal under your land?

If you only own the surface of your land and none of  the minerals, this strategy will not work for you.  Skip to this next heading, which is also pretty good.  But if you own the surface and the minerals, and in particular any of the coal, then owning the coal will work for you to block them from using your land for a well pad that will contains several horizontal wells. 

Most horizontal wells are drilled in groups from centralized well pads these days – with four, six or even more horizontal wells being drilled from one centralized pad/ well site.  Coal owners can make them drill their wells 1500 feet apart.  So if you own the coal, you can block the use of your surface to drill multiple wells on one pad because they are not 1500 feet apart.  That law was not intended to work in this circumstance, but since the legislature has no passed laws to protect us from the problems with horizontal drilling to the Marcellus Shale, we use what law we have available!  Here is more about how to do that! 

Whether you own the coal or not, the strategy under the next heading also works for you.

More ways to refuse the use of your surface for a huge pad for horizontal gas wells.

WV-SORO believes that a surface owner who does not own his or her minerals cannot be forced to have a horizontal well pad on the surface land unless the horizontal well will only be draining the mineral tract under the surface owner's land.  This is good news for surface owners and we know lawyers who work for the industry who agree with this (although the companies and local landman may not realize it yet).  Although there are no cases on this in West Virginia, legal encyclopedia's of gas law say that this is "clearly" true and that the reason that there are no appellate court cases on the point is that "such veto powers appears generally assumed.

WV-SORO generally favors horizontal drilling because one well site, access road and pipeline replaces three or four.  Moreover, if horizontal wells are drilled from centralized well pads, one well site, access road and pipeline can replace more than 20 vertical well sites etc.  However, this does not mean the rights of the surface owner of the land where the wells are being drilled should be ignored or that the surface owner should not share in the financial benefits of producing the gas.

The key is knowing the boundaries of the tract of land on the date the ownership of the surface was severed from the ownership of minerals.  Any of the surface land or tracts within the boundaries of the mineral tract at the time ownership was severed can be accessed to get to and develop those minerals.  But the surface of the land cannot be used to get the minerals from a neighboring mineral tract.  If a driller wants to drill a horizontal leg that goes beyond the boundaries of the tract at the time of the severance, then the driller has to have the permission of the surface owner to use the surface for drilling under that neighboring tract.  If the driller does not get that permission, the driller has to stay inside the original boundaries. 

Drillers prefer that centralized well pads be large enough to accommodate 6 or more horizontal wells, or enough to drain 640 or more acres.  They can and will drill on smaller drainages, but it is less efficient and profitable.  In the West Virginia counties where the Marcellus and other shales are being drilled horizontally, most tracts of land, even the original tracts at the time of severance, are smaller than 640 acres. 

This is good news for surface owners because it means you can just say "no" to a horizontal well that goes beyond the original boundaries.  This may force the driller to drill fewer and/or shorter horizontal legs, which will make the driller's plan less profitable.  However, this probably will not reduce the damage to the surface by much if the driller decides to drill from that location.  But it may be discouraging enough that the driller will go elsewhere.  Or it may give you a bargaining advantage to get more money for allowing them to use your surface to get to minerals in neighboring tracts.  Although we have not heard from any surface owners who in the end thought they got enough money to adequately compensate them for what happened to their land and lives when any well site, let alone a centralized pad for multiple horizontal wells, was placed on them..  However, if you know of or are one, please let us know so we can help other surface owners who are looking for guidance determine how much money they should ask for.

[NOTE:  This may not apply if you own the surface and the minerals.  If you or a previous owner signed a lease that is still in effect which says that your land can be used to produce oil and gas from neighboring lands, then the driller may still be able to use your surface to get to neighboring minerals by drilling horizontally, but ONLY IF it says so in the lease.  The lease may allow pipelines from neighboring tracts to cross your land, for example, but may not permit other uses.  It is important to get the lease and read it carefully, or better yet, have a lawyer review it for you.]

Finally, there is one other argument that may keep a driller from using your surface for a horizontal well or maybe even a vertical Marcellus Shale well. Because the slick water fracturing and other techniques use in developing the Marcellus Shale require huge sites and impoundments, it’s possible that if you sued to stop them from placing such a site on your land, the courts would say that this type of well site was not "in the contemplation of the parties" at the time of the severance or the signing of the lease.  (Read about this in the WV Surface Owners’ Guide to Oil and Gas and the updates to the Guide.)  The problem with using this theory to stop the driller is that the surface owner would have to bring a suit in Circuit Court. (We hope someone does. We would consult with their lawyer if they do, and maybe file an amicus brief, etc.)  On the other hand, the fact that the driller needs the surface owner's consent in the first place before they can drill a horizontal well to get to minerals that were not within the boundary of the original tract places the surface owner in a much more advantageous position.  If the driller is caught doing this without the surface owner's permission, then a huge lawsuit is possible.  The people financing the drilling know this.  So basically, the driller has to get your consent BEFORE doing this and you can say, "No," or at least get compensation that is more realistic.