Opinion
2022-075-B
05-15-2023
DOUGLAS SCOTT and LINDA MARIE SCOTT v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION and RICE DRILLING B, LLC, Permittee
For the Commonwealth of PA, DEP: Michael J. Heilman, Esquire Forrest M. Smith, Esquire Anna Zalewski, Esquire (via electronic filing system) For Appellant: Joy Llaguno, Esquire Philip Hook, Esquire (via electronic filing system) For Permittee: Megan S. Haines, Esquire Casey Snyder, Esquire (via electronic filing system)
For the Commonwealth of PA, DEP: Michael J. Heilman, Esquire Forrest M. Smith, Esquire Anna Zalewski, Esquire (via electronic filing system)
For Appellant: Joy Llaguno, Esquire Philip Hook, Esquire (via electronic filing system)
For Permittee: Megan S. Haines, Esquire Casey Snyder, Esquire (via electronic filing system)
OPINION AND ORDER ON MOTION TO DISMISS
STEVEN C. BECKMAN CHIEF JUDGE AND CHAIRPERSON
Synopsis
The Permittee's motion to dismiss this appeal as moot is denied. Because the Appellants have raised a claim that the Department of Environmental Protection's issuance of permits for unconventional gas wells drilled on the Appellants' property constitutes a taking, this matter is not moot. The Board is the tribunal charged with adjudicating questions of whether a Department action has resulted in a taking.
OPINION
Background
This matter involves an appeal filed with the Environmental Hearing Board (Board) by Douglas Scott and Linda Marie Scott (the Scotts) challenging unconventional gas well permits issued to Rice Drilling B, LLC (Rice) by the Department of Environmental Protection (Department). According to the parties' filings, Rice applied for the unconventional gas well permits to drill wells known as Corsair 1H, 3H, 5H, 7H and 9H (the 2022 wells) located on property owned by the Scotts in Franklin Township, Greene County. The 2022 wells are located on an existing well pad constructed in 2019 and in line with six producing Corsair wells drilled on the property in 2019.
According to documents provided with the Notice of Appeal, Rice and the Scotts entered into an agreement authorizing the drilling of wells on the Scotts' property. (Notice of Appeal, Attachment 1, Ex. F.) On or about April 11, 2022, Rice gave the Scotts notice of their permit applications to drill the 2022 wells. (Notice of Appeal, Attachment 1, para. 4.) On April 22, 2022, the Scotts requested that the Department deny the applications based on the following objections: 1) the Scotts owned multiple workable coal seams through which the wells would penetrate, 2) the 2022 wells were located within 500 feet of an operating gas well, and 3) Rice failed to obtain proper consent from the Scotts as required by Section 507 of the Coal and Gas Resource Coordination Act, Act of December 18, 1984, P.L. 1069, as amended, 58 P.S. §§ 501-518 (Coordination Act). (Notice of Appeal, Attachment 1, para. 5 and Ex. B.)
On August 23, 2022, the Department issued the well permits, and the Scotts filed this appeal. The Scotts did not seek a supersedeas of the permit issuances.
The matter now before the Board is a motion to dismiss filed by Rice asserting that the matter is moot because the 2022 wells have been drilled and, therefore, there is no relief the Board can provide. The Department filed a memorandum of law in support of Rice's motion. The Scotts have filed a response opposing the motion, and Rice filed a reply. This matter is now ripe for disposition.
Standard of Review
The Board evaluates a motion to dismiss in the light most favorable to the nonmoving party. Muth v. DEP, 2022 EHB 262, 264. A motion to dismiss may be granted only where the moving party is entitled to judgment as a matter of law. Id; Downingtown Area Regional Authority v. DEP, 2022 EHB 153, 155 (citing Burrows v. DEP, 2009 EHB 20, 22); Hopkins v. DEP, 2022 EHB 103, 104. A motion to dismiss may only be granted when a matter is free from doubt. Downingtown, 2022 EHB at 155 (citing Bartholomew v. DEP, 2019 EHB 515, 517).
In its motion Rice argues that the Scotts' appeal should be dismissed on the basis of mootness. "Mootness is a prudential limitation related to justiciability," and so is generally an issue that is properly resolved by a motion to dismiss. M & M Stone Co. v. DEP, 2009 EHB 495, 500. "A matter before the Board becomes moot when an event occurs which deprives the Board of the ability to provide effective relief or when the appellant has been deprived of a stake in the outcome." Horsehead Resource Development Co. v. DEP, 1998 EHB 1101, 1103, aff'd 780 A.2d 856 (Pa. Cmwlth. 2001). There are exceptions to mootness, including where the action complained of is capable of repetition but likely to evade review, where issues of great public importance are involved, or where a party will suffer a detriment without a decision by the Board. Consol Pennsylvania Coal Co. LLC v. DEP, 2015 EHB 48, 56. The existence of any of these circumstances "may justify" the Board retaining jurisdiction of the matter. Id. (citing Ehmann v. DEP, 2008 EHB 386, 390.)
Discussion
Rice and the Department assert that the sole basis for the Scotts' claims is their contention that the coal seams underlying their property are workable and, therefore, they should have been afforded certain rights under the Coordination Act. The Coordination Act imposes certain requirements on gas wells that penetrate a workable coal seam. 58 P.S. § 503(a). In particular, Section 507 of the Coordination Act sets forth spacing requirements, and subsections (b) through (d) address circumstances where consent of the owner of the workable coal seam is required. Id. at § 507(b)-(d).
A "workable coal seam" is defined as follows:
(1)A coal seam in fact being mined in the area in question under this act by underground methods.
(2)A coal seam which, in the judgment of the Department of Environmental Protection, can reasonably be expected to be mined by underground methods.Id. at § 502. The Department has developed a technical guidance document to assist in making a determination of what constitutes a "workable coal seam." (Notice of Appeal, Attachment 1, Exhibit C, p. 3.) In their Notice of Appeal and in their motion, the Scotts assert that the Department's determination that their coal seams were not "workable," and thus not subject to the protections of the Coordination Act, was arbitrary and capricious.
Rice and the Department argue that the Scotts' claims that they are entitled to protections under the Coordination Act are moot because the wells have been drilled and the surrounding coal has been sterilized. According to a declaration provided by Rice with its motion, Rice spud the 2022 wells on or about August 26, 2022 and completed drilling through the coal seams on the Scott's property between mid-September 2022 and mid-October 2022. (Rice's Memorandum of Law, Ex. 2, para. 4 and 6.) Rice and the Department assert that because the wells have been drilled there is no relief the Board can grant to the Scotts. They further argue that no exception to the mootness doctrine applies here.
The Scotts dispute that the appeal is moot. They argue that the issuance of the permits and the Department's determination that the coal seams are not workable presents a live dispute. In particular, they contend that if the Board finds that the coal seams through which the gas wells have been drilled are "workable" coal seams, that determination will impact Rice's operations and the Department's regulation of the wells going forward. They further argue that even if the Board determines that the claims are moot they nonetheless fall within the following exceptions to the mootness doctrine: 1) the Department's permitting process raises issues of public concern; 2) this is a matter that is capable of repetition yet evading review as evidenced by the fact that the permit was issued on August 23, 2022 and the wells were spud just three days later on August 26, 2022; and 3) the Scotts will be deprived of a determination by the Board as to whether the Department erred in finding their coal seams unworkable. Additionally, the Scotts assert that even if we find that this matter is technically moot, "the Board has the authority upon its own measure of prudence to proceed." (Appellants' Memorandum of Law in Opposition, p. 12) (citing Ehmann, 2008 EHB at 388).
In its reply, Rice disputes that the Coordination Act imposes continuing obligations on it or the Department that prevent this matter from being moot. Rice contends that the Scotts are merely asking for an advisory opinion on how the Department should handle future permitting actions. As to the Scotts' claim of exceptions to the mootness doctrine, Rice argues that none of the stated exceptions apply. With regard to the public policy exception, Rice argues that the Department's decision in this matter was fact-based and unlikely to have far-reaching impact. As to the Scotts' claim that this issue is capable of repetition yet evading review, Rice points out that the Scotts could have sought a temporary supersedeas to prevent the drilling of the wells but chose not to do so. As to the Scotts' claim that they will suffer a detriment if they are unable to have their issues heard by the Board, Rice argues that the Scotts have failed to demonstrate how they will be affected. As Rice has continuously pointed out, the wells have been drilled and the coal seams are sterilized and that cannot be undone.
Based on our review of the Notice of Appeal and the parties' filings, we are not convinced that this appeal is moot. In their Notice of Appeal, the Scotts have asserted that the Department's issuance of the permits constitutes a taking. (Notice of Appeal, Attachment 1, para. 2 and 59.) As the Commonwealth Court has held, the Board has jurisdiction to determine whether a taking has occurred in matters involving an action of the Department. Beltrami Enterprises v. Department of Environmental Resources, 632 A.2d 989 (Pa. Cmwlth. 1993), petition for allowance of appeal denied, 645 A.2d 1318 (Pa. 1994).
However, Rice argues that to the extent the Scotts may seek damages for their alleged lost property interests, there is no relief that the Board can provide because the Board cannot award damages. (Rice Reply, p. 7) (citing Tri-County Realty Co. v. DEP, 2015 EHB 517, 529). While we agree with Rice that the Board cannot award damages in this matter, nonetheless "[i]t is this Board's responsibility to determine in the first instance whether a Departmental action has resulted in an unconstitutional taking." Marshall v. DEP, 2019 EHB 352, 354 (citing Domiano v. Department of Environmental Protection., 713 A.2d 713 (Pa. Cmwlth. 1998); Davailus v. DEP, 2003 EHB 101; Sedat, Inc. v. DEP, 2000 EHB 927). As the court held in Beltrami:
It is irrelevant that the EHB does not have the power to award damages. Whether a court has been empowered to hear or adjudicate a controversy and whether a court has the power to grant the particular relief sought in a case are separate and distinct questions.632 A.2d at 993. Following the Board's initial determination of whether a taking has occurred, "[t]he jurisdiction of the courts of common pleas under the Eminent Domain Code might then be invoked in order to determine the amount of damages, if any, that might have occurred as a result of the taking. . ." Id. (quoted in Domiano, 713 A.2d at 715).
Therefore, given that the Scotts have raised an objection in their Notice of Appeal asserting that the Department's action constituted a taking, we find that this matter is not moot, and we enter the following order:
ORDER
AND NOW, this 15th day of May, 2023, it is hereby ordered that Rice's motion to dismiss is denied for the reasons set forth herein.