In Martin v. Hamblet, decided November 21, 2012, the West Virginia Supreme Court of Appeals determined that a surface owner may not appeal issuance of a well work permit by the Department of Environmental Protection for a shallow well targeting the Marcellus formation with a horizontal leg into the Marcellus. This decision is important for four reasons:

1. The Court held that the right of judicial review with regard to the issuance or refusal of a well work permit as provided by W. Va. Code § 22-6-41 does not extend to owners of the surface rights of the property upon which the proposed well is to be drilled and, to the extent that State ex rel. Lovejoy v. Callaghan, 213 W. Va. 1, 576 S.E.2d 246 (2002), indicates otherwise, it was overruled.
2. The Court held that the right of judicial review with regard to the issuance or refusal of a well work permit as provided by W. Va. Code § 22-6-40 does not extend to owners of the surface rights of the property upon which the proposed well is to be drilled.
3. The Court rejected arguments of the surface owner that under the safeguards of the Due Process and Equal Protection clauses of the United States Constitution and the West Virginia Constitution surface owners are entitled to an appeal that provides meaningful review of a government decision that affects their lands. The Court found that EQT had a legally binding lease that granted it explicit rights of access to the oil and gas underlying Mr. Hamblet’s property; that it was this contractual obligation burdening Mr. Hamblet’s surface estate that deprived him of an unrestricted right to enjoyment of his property, not the issuance of the well work permit at issue; and that there was no merit to Mr. Hamblet’s constitutional arguments.
4. The Court urged the Legislature to re-examine this issue and consider whether surface owners should be afforded an administrative appeal under circumstances such as those in Martin. The next 60-day regular session of the Legislature begins February 13, 2013.