Sustained Outrage

West Virginia’s Supreme Court is scheduled tomorrow to hear an important case over the future of our state parks. Justices will consider an appeal of the June 2009 ruling by Logan Circuit Judge Roger Perry to allow natural gas drilling in Chief Logan State Park.

We’ve covered this issue before here, here, here and here, and also noted that this may be part of a larger push for more gas drilling on West Virginia’s public lands.

At tomorrow’s argument, the state Department of Environmental Protection will ask the justices to overturn Perry’s ruling, which itself overturned an earlier decision by DEP to deny drilling permits sought by Cabot Oil and Gas.  In December 2007, then-DEP Secretary Stephanie Timmermeyer turned down Cabot’s applications, citing a section of state law that prohibits mineral extraction in state parks.

In a legal brief available online here, the DEP argues that Judge Perry was wrong to conclude that the agency had no authority to use that section of state law — which is actually included a section spelling out duties of the state Division of Natural Resources in overseeing parks — to deny Cabot’s drilling permits:

This matter boils down to fourteen words in a statute, section 20-5-2(b)(8) of the West Virginia Code, which instructs that the State “may not permit … the exploitation of minerals … for commercial purposes … in any state park.” There is nothing ambiguous or unclear about this statutory prohibition. The law does not provide that the State may only prevent the commercial exploitation of coal, oil, or natural gas within one of its parks if it happens to own the minerals itself, or that it must permit extraction if there have long been operating wells in the subject park or in others, or that the bar is without effect if the State has previously acquiesced in a deed or contract. To the contrary, the Legislature plainly decreed that, from the point at which it acted, no exploitation of minerals in any state park is to be allowed.

… The words are there in black and white, there is no gray.

In enforcing oil and gas laws, the DEP argues, agency officials are required by law to do so in a manner that “supplements and complements” the environmental policies and programs of other West Virginia agencies:

Thus, if DNR is prohibited by law from allowing the exploitation of natural resources underlying a State park because the Legislature has made a judgment that this sort of development cannot be squared with the need to protect the park’s unique surface aesthetic, that is precisely the sort of environmental policy that DEP is required to acknowledge and to which it must conform its own conduct.

In their own court briefs, Cabot Oil and Gas — as well as the Lawson Heirs, who own the gas rights and leased them to Cabot — argue that the rights to the drilling were reserved 50 years ago when the land was donated to the state, and that DEP’s permit denial amounted to an unconstitutional “taking” of private property. According to former deputy DNR Director Larry George, a lawyer for the Lawson Heirs:

Such action, had it not been reversed by the Circuit Court, would have been an inverse condemnation of Lawson Heirs’ mineral property for which the state could be compelled in mandamus to pay compensation at fair market value.

DEP pointed out in its brief that if that were the case, the proper legal step for the Lawson Heirs would be to file such an action seeking compensation, not to have a circuit court overturn the permit denial.

One of the interesting things about this case is that it has groups that often are at odds with West Virginia regulatory agencies — the West Virginia Highlands Conservancy, the Friends of Blackwater and the Sierra Club — siding with DEP.

Also involved in arguing in support of DEP is Cordie Hudkins, a former DNR parks director. Among other things, Hudkins provided the court with information about DNR’s longstanding interpretation of state law to prohibit such drilling permits and evidence that as recently as 1998 the Lawson Heirs indicated they were aware of such a policy.

In its own brief, the state DNR — drafted to intervene during a hearing before Judge Perry — urges the justices not to make any ruling in this case binding on it, but environmental groups represented by Charleston lawyer Tom Rodd cautioned about the case’s potential long-term impacts:

The Legislature, recognizing that West Virginians want and need their state parks as oases of peace and undisturbed nature, has spoken reasonably, clearly, and authoritatively to ensure that result. This Court should uphold the Legislative decision.

You can watch the court argument via a Webcast here.