Legislative Update: House Bill No. 4615 Regarding Criminal Offense of Trespass Upon Critical Infrastructure Facility Awaiting West Virginia Governor’s Signature

March 10, 2020
Posted By: Katrina Bowers, Esq.

A bill establishing the West Virginia Critical Infrastructure Protection Act is now awaiting Governor Jim Justice’s signature after completing legislative action. If signed by West Virginia’s Governor, the bill will be effective June 5, 2020. The bill creates a criminal offense of trespass upon property containing a critical infrastructure facility, trespass upon property containing a critical infrastructure facility with intent to damage equipment or impede the operations of the critical infrastructure facility, and for willfully causing damage to a critical infrastructure facility.

“Critical infrastructure facility” is defined to include, but is not limited to, the following facilities if completely enclosed by a fence or other physical barrier that is obviously designed to exclude intruders, or if clearly marked with a sign or signs that are posted on the property that are reasonably likely to come to the attention of intruders and indicate that entry is forbidden without site authorization: (1) A natural gas compressor station; (2) A liquid natural gas terminal or storage facility; (3) A gas processing plant, including a plant used in the processing, treatment or fractionation of natural gas or natural gas liquids; (4) A natural gas distribution utility facility including, but not limited to, pipeline interconnections, a city gate or town border station, metering station, below- or above-ground pipeline or piping and truck loading or offloading facility, a natural gas storage facility, a natural gas transmission facility, or a natural gas utility distribution facility; (5) A crude oil or refined products storage and distribution facility including, but not limited to, valve sites, pipeline interconnections, pump station, metering station, below- or above-ground pipeline or piping and truck loading or offloading facility; (6) Any above-ground portion of an oil, gas, hazardous liquid or chemical pipeline, tank, or other storage facility that is enclosed by a fence, other physical barrier or is clearly marked with signs prohibiting trespassing, that are obviously designed to exclude intruders; (7) A petroleum or alumina refinery; (8) A chemical, polymer or rubber manufacturing facility; and (9) A water intake structure, water treatment facility, wastewater treatment plant or pump station.

Additionally, the bill establishes a criminal offense of conspiracy to commit trespass against a critical infrastructure. Finally, the bill establishes criminal penalties and civil liability for violations of the West Virginia Critical Infrastructure Protection Act and preserves the right to lawfully assemble and petition for redress of grievances.

Nuisance Claims From Oil & Gas Operations Constitute a Permanent Nuisance Subject to the Two-Year Statute of Limitations

February 6, 2020
Posted By: Joshua S. Snyder, Esq.

On January 27, 2020, the Court of Common Pleas of Washington County granted an oil and gas operator’s motion for summary judgment, dismissing the plaintiffs’ nuisance claims due to the bar of the statute of limitations.  Keller-Smith, et. al v. Rice Drilling B, L.L.C., No. 2016-297 (Washington Cnty. Ct. Comm. Pl. 2020).  Plaintiffs claimed (among other things) that dust, noise, and light from a nearby natural gas well and compressor station interfered with the use and enjoyment of their properties.

The issue before the Court was whether Plaintiffs’ claims constituted a permanent or continuing nuisance.  The two-year statute of limitations for a permanent nuisance begins to run from the first date of injury.  In contrast, for a continuing nuisance, the two-year statute of limitations begins to run with each separate occurrence.  In deciding whether Plaintiffs’ nuisance claims were permanent or continuing, the Court considered three factors: (i) the character of the structure or thing which produced the injury; (ii) whether the consequences of the nuisance will continue indefinitely; and (iii) whether the past and future damages may be predictably ascertained.

The Court found that each of the three factors indicated that Plaintiffs’ nuisance claims were permanent in nature.  The Court held that “under the first and second factors, both the character of the well pad and the indefinite nature of its operations, spells permanence.”  The plaintiffs’ repeated and continual allegations of harm demonstrated that the alleged “nuisance occurred with such regularity that the third factor also weigh[ed] in favor of a permanence finding.”  The Court held that to find the claimed injuries to be continual in nature would lead to the untenable result of the statute of limitations recommencing “each time an unpleasant smell wafted onto the Plaintiffs’ property or bright lights at the Pad kept the Plaintiffs awake at night.”  The Court noted that it was the plaintiffs themselves who “decided to postpone filing a distinct lawsuit on any of the tortious incidents separately and opted instead to assert a plethora of disparate allegations under a unified theory of nuisance.  In reaching this conclusion, the Court found the opinion of the United States District Court for the Middle District of Pennsylvania in Russell v. Chesapeake Appalachia, L.L.C. to be persuasive.

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