The United States District Court for the Southern District of Ohio recently addressed whether a mineral owner could assert a subsurface mineral trespass claim against its predecessor’s lessee in the context of specified subsurface depths reserved in an oil and gas lease in Golden Eagle Res. II LLC v. Rice Drilling D, LLC. Both parties claim the right to be able to develop the Point Pleasant interval underlying certain tracts of land. Defendant pooled that property into a unit, and plaintiff claims that, as a consequence, defendant “physically invaded and unlawfully entered a formation below the Utica owned by [plaintiff], specifically the Point Pleasant formation.” But plaintiff never explained how defendant actually invaded and unlawfully entered that portion of the Point Pleasant below the disputed property. In analyzing the claim, the court observed that plaintiff was not claiming that the property was a drill-site tract. Nor could the plaintiff claim that merely pooling the property into the unit, without more, constituted a subsurface trespass. Consequently, the only possible trespass claim that plaintiff could assert, according to the court, was that the defendant had impermissibly injected hydraulic fracturing fluids into the property—something that plaintiff had not actually asserted. Accordingly, the court denied defendant’s motion to dismiss, allowing plaintiff time to amend its complaint to include such allegations if it could.
For more (including the court’s discussion of conversion), see here.