In a landmark decision on April 2, 2018, the Pennsylvania Superior Court ruled that the “Rule of Capture” does not apply to frac fissures that extend under unleased parcels. This decision clarified an important aspect of Pennsylvania oil and gas law: a driller cannot remove hydrocarbons from the shale formations beneath your property unless you have signed a valid oil and gas lease. In Briggs v. Southwestern Energy Production Company, the Pennsylvania Superior Court concluded that:
“In light of the distinctions between hydraulic fracturing and conventional gas drilling, we conclude that the rule of capture does not preclude liability for trespass due to hydraulic fracturing. Therefore hydraulic fracturing may constitute an actionable trespass where subsurface fractures, fracturing fluid and proppant cross boundary lines and extend into the subsurface estate of an adjoining property for which the operator does hot have a mineral lease, resulting in the extraction ‘Of natural gas from beneath the adjoin landowner’s property·”
Following that decision, Southwestern Energy Production Company (“SWN”) sought permission to file an appeal with the Pennsylvania Supreme Court. On November 20, 2018, the Pennsylvania Supreme Court agreed to hear SWN’s appeal. Given the importance of this issue, the Pennsylvania Chapter of the National Association of Royalty Owners (“PA NARO”) engaged Robert J. Burnett of Houston Harbaugh to prepare and file a “friend of the court” brief in support of the Superior Court’s opinion. A copy of the amicus curiae brief filed by Houston Harbaugh can be found here .