In Woodhouse Hunting Club, Inc. v. Hoyt, an unpublished opinion filed February 2, 2018, the Pennsylvania Superior Court upheld the practice of “title washing” of unseated land in Pennsylvania. Prior to January 1, 1948, title washing occurred through a tax sale of unseated land from which oil, gas and/or minerals (the “subsurface estate”) had been previously severed. If the subsurface estate had not been separately assessed, the tax sale of the unseated land would extinguish the prior severance and vest the tax sale purchaser with full ownership in the surface and subsurface estates. If the oil and gas had been separately assessed, then the tax sale of the surface would have no effect on the subsurface estate. After January 1, 1948, mineral estates were no longer separately assessed from the surface in Pennsylvania and title washing could no longer occur. In 2016, the Pennsylvania Supreme Court upheld the practice of “title washing” of unseated or unimproved land in Pennsylvania. Herder Spring Hunting Club v. Keller, 143 A.3d 358 (Pa. 2016).
Prior to the Superior Court ruling, the trial court had quieted title in favor of Woodhouse Hunting Club, Inc. based upon the Club’s argument that Hoyt did not own subsurface mineral rights due to a 1902 title wash. In issuing its ruling in Hoyt, the Superior Court noted that the Herder Spring decision addressed and disposed of all of Hoyt’s issues in the case. Therefore, the Superior Court relied on the holding in Herder Spring in affirming the trial court’s decision to grant summary judgment and quiet title in favor of Woodhouse Hunting Club, Inc.
As reported by The Times-Tribune in Scranton, four winners were chosen in the 3rd Annual Shale Gas Innovation Contest. The winners were KCF Technologies, Inc., NG Innovations, Inc., OPTIMUM Pumping Technology, and TM Industrial Supply, and each received a prize of $25,000. The contest received 80 entries, of which there were 13 finalists. The four companies submitted projects that included a wireless system for monitoring oil and gas equipment, a tracking system for the transportation of fluids using satellites, a high-performance manifold for natural gas compressors, and a filter system for the removal of substances from natural gas.
The Secretary of Energy Advisory Board (SEAB) recently published its recommendations for improving the effectiveness of FracFocus. The report entitled, “Task Force Report on FracFocus 2.0,” recommends improving the accuracy and completeness of registry submissions by fully disclosing all known constituents while claiming as few, if any, trade secret exemptions as possible. The report suggests using a “systems approach” that reports the chemicals added separately from the additive names and product names that contain them to protect trade secrets. The report also contains recommendation for improving FracFocus’s data storage and retention.
On January 13th, the Pennsylvania Senate Appropriations Committee voted in favor of a senate bill that encourages oil and gas operators to re-use mine-influenced water for hydraulic fracturing. Senator Kasunic (D-Fayette/Somerset) re-introduced the bill, known as Senate Bill 411 (previously Senate Bill 1346 of last session). The bill is set to move to the full Senate floor for a vote in the near future.
The New York Court of Appeals on September 30, 2013 set a schedule for the parties to file briefs in two cases that will likely have a substantial impact on the future of hydraulic fracturing in the state. In August of this year, the Court of Appeals granted review of two cases which upheld local natural gas drilling bans in the upstate towns of Dryden and Middlefield. The Appellants in the two cases, which include Norse Energy Corp. and an owner of several oil and gas leases, must file their initial briefs by October 28, 2013, and the towns must file their response briefs by December 16, 2013. Reply briefs from the Appellants are due by January 6, 2014. The Court of Appeals has not set a date for oral arguments.
The Court will determine whether the New York Oil, Gas, and Solution Mining Law preempts a municipality’s authority to enact a zoning ordinance that prohibits drilling within its jurisdiction. To date, more than 50 municipalities in New York have banned gas drilling.
An environmental advocacy group reportedly filed a lawsuit against the New York Department of Health on September 13, 2013, seeking to force the release of documents related to the agency’s public health review of hydraulic fracturing. The Seneca Lake Pure Waters Association filed the action after the Department of Health rejected the group’s earlier request to obtain the documents under the State Freedom of Information Law. Groups on both sides of the debate on whether the state’s hydraulic fracturing moratorium should be lifted have criticized the lack of transparency in the Department of Health’s public health review. Currently the State has no timetable for completion of the public health review.
On September 6, 2013, the New York State Department of Environmental Conservation’s Deputy Commissioner for Administration told a legislative committee there is no timeframe for a decision on whether to lift a state moratorium on hydraulic fracturing. In testimony before the State Assembly Environmental Conservation Committee, Anne Reynolds said that the DEC is in the midst of reviewing more than 100,000 public comments submitted on the agency’s 2011 draft environmental review of hydraulic fracturing in the Marcellus Shale. Reynolds also told the committee that she did not have any information on the status of the state Department of Health’s review of the public health effects of hydraulic fracturing, which Governor Cuomo has said must be completed before a decision on whether to lift the moratorium is made.
The Bureau of Land Management’s revised proposal to regulate hydraulic fracturing on federal lands remains controversial, inviting more than 600,000 comments from 250 public interest groups calling for stricter regulations, as well as strong opposition from industry groups such as the American Petroleum Institute and the Western Energy Alliance. BLM released the revised proposal in May. The deadline for public comment, which was extended once, passed last Friday, August 23rd. BLM will review the comments before publishing a final rule. BLM holds 700 million acres of federal mineral estate and 56 million acres of Indian mineral estate.
New York’s moratorium on hydraulic fracturing has entered its sixth year. On July 23, 2008, former Governor David Paterson directed the New York State Department of Environmental Conservation (DEC) to conduct an environmental review of high-volume hydraulic fracturing. After taking office, Governor Andrew Cuomo continued the order, and the DEC has not yet finalized its environmental review. Gov. Cuomo said that he will not make a decision on lifting the moratorium until the New York Commissioner of Health performs a public health review of the DEC’s work. No timetable for the completion of the public health review has been announced.
Updating previous posts, the Western Energy Alliance (WEA) recently released an economic analysis in response to the Department of the Interior, Bureau of Land Management’s (BLM) latest version of its proposed fracking rules for wells on federal lands. Bloomberg BNA reports that WEA believes that although positive changes were made in the latest revised rules, BLM did not consider a number of factors, such as initial delay costs associated with implementing the rule in light of current staffing levels. BLM estimated that its revised proposal would cost industry between $12 million to $20 million annually, which is substantially lower than the estimated costs of the original proposal ($37 to 44 million annually). However, WEA found that BLM’s latest proposal will still have a significant financial impact on the industry. WEA and other industry groups have urged BLM to abandon the proposed rules.
Pennsylvania Governor Tom Corbett recently sent a letter to the Delaware River Basin Commission urging the Commission to end a three-year moratorium on hydraulically fractured wells. Corbett reportedly wrote that “[o]perators interested in developing natural gas have closed offices and laid off employees, lease payments have been withheld . . . and communities have watched their neighbors outside the basin benefit tremendously.” The Delaware River Basin Commission governs water quality in Pennsylvania, New Jersey, Delaware and New York. The Commission released proposed rules addressing oil and gas activity in the Basin but these have yet to be finalized. A vote on the proposed rules was scheduled in November 2011, but was cancelled when Delaware Governor Jack Markell withdrew his support and New York expressed that it wanted to complete its own environmental and health studies, which are still ongoing.
On Thursday, U.S. EPA announced that the State of Wyoming will lead further investigation of drinking water quality in Pavillion, Wyoming. In 2009, EPA began working with the state and local tribes to investigate water quality in the Pavillion area in response to citizen reports of contaminated well water. Sampling results have shown constituents of concern in the domestic water wells, but a source of the constituents has yet to be determined. EPA released a draft report in 2011 indicating that the groundwater contains constituents likely associated with nearby gas production and hydraulic fracturing activity. The agency no longer intends to finalize or rely on the draft report, as indicated in the following statement from EPA:
“While EPA stands behind its work and data, the agency recognizes the State of Wyoming’s commitment for further investigation and efforts to provide clean water and does not plan to finalize or seek peer review of its draft Pavillion groundwater report released in December, 2011. Nor does the agency plan to rely upon the conclusions in the draft report.”
EPA will continue to provide support for the investigation led by Wyoming officials. EPA plans to now focus attention on its major hydraulic fracturing study, for which the agency expects to issue a draft report in late 2014.
Democrats in the Monroe County Legislature are seeking to permanently ban fracking on county-owned land. If they succeed, Monroe County would join 13 other counties in New York that have enacted similar fracking bans on county land. However, the Democrats have not introduced proposed legislation, and they hope to work with Republicans, who hold a 19 – 10 majority in the Legislature, on developing specific legislative language. Several municipalities in Monroe County, including the towns of Brighton, Rush, Perinton, Mendon, Penfield and the City of Rochester, have banned fracking within their borders. New York’s highest court is currently considering whether to accept a request to review recent state appeals court decisions that upheld local laws banning gas drilling.
The U.S. Department of the Interior has extended the comment period by 60 days for the revised proposed rules for hydraulic fracturing on federal lands. Interior Secretary Sally Jewell indicated that various interest groups had requested more time to review the 171-page proposal issued in May. The comment period was set to expire on June 24, 2013, but comments will now be accepted through late August.
New York Governor Andrew Cuomo recently stated that he would make a decision on whether to lift the state moratorium on hydraulic fracturing before the 2014 election. Cuomo said that the results of a review of potential health effects from hydraulic fracturing by the state health commissioner, Dr. Nivah Shah, should be ready within several weeks. “I expected it to be concluded already,” Cuomo said. “It’s not in the distant future. But it’s not done yet.”