Solar developers in the PJM region, particularly in Pennsylvania, West Virginia, and Ohio, often encounter land with a complex history of mineral development. This history can significantly impact solar projects, from site planning to obtaining title insurance coverage. Understanding the interplay between surface and subsurface rights is crucial for developers to protect their interests and ensure project viability. Diligent site planning and careful review of mineral title research can go a long way in preventing worst case scenarios and mitigating risk.
In the Appalachian Basin, statutes do not explicitly define the scope of rights between subsurface and surface tenants. For instance, Pennsylvania’s “Oil and Gas Lease Act”[1] and West Virginia’s “Mineral Development by a Majority of Cotenants”[2] focus on subsurface leasing without addressing the interactions between mineral lessees and surface lessees. This lack of statutory guidance means that disputes often rely on caselaw. Like the majority of jurisdictions, mineral lessees in most Appalachian Basin states enjoy the right to use the surface[3], but this right is tempered by the principle of “reasonable necessity.”[4]
Caselaw has established that mineral lessees have the right to use the surface as much as reasonably necessary to extract minerals. This right is broad, allowing activities like constructing access roads and even storage facilities and freshwater impoundments[5], even if these were not contemplated when the lease was executed. However, this right is not without limits; it must be exercised with due regard for the surface holder’s rights. Courts have ruled that subsurface activities must not impose substantial burdens on surface owners, and any excessive interference can be challenged in equity courts.
Careful review of the active mineral leases and associated contracts and meaningful consultation with engineers can help solar developers forecast the extent of the mineral lessee’s surface operations by what would be deemed “reasonable necessity.” For instance, mineral lessees cannot use the surface for unrelated operations or store materials from foreign fields without explicit contractual language.[6] Courts have generally sided with surface holders in such cases, reinforcing the need for mineral lessees to confine their activities to the land where extraction is ongoing.[7]
Conclusion
In summary, the relationship between surface and subsurface leaseholders in the Appalachian Basin is governed by a nuanced body of caselaw that balances the rights of both parties.[8] While mineral lessees enjoy broad rights, these are not absolute and must be exercised reasonably. Solar developers must understand these dynamics and seek expert legal advice to navigate potential conflicts, ensuring their projects proceed smoothly and without legal entanglements.
[1] 8 Pa. Stat. Ann. §§ 33-35.4.
[2] W. Va. Code Ann. § 37B-1-4.
[3] Minard Run Oil Co. v. U.S. Forest Serv., 670 F.3d 236, 243–44 (3d Cir. 2011), as amended (Mar. 7, 2012); In re Murray Energy Holdings Co, 654 B.R. 110, 124 (Bankr. S.D. Ohio 2023);
[4] “[U]nless contrary language is used, a mineral estate carries with it the right to use as much of the surface as may be reasonably necessary to reach and remove the minerals.” Quarto Mining Co. v. Litman, 42 Ohio St.2d 73, 83, 326 N.E.2d 676 (1975) (internal citations omitted).
[5] Andrews v. Antero Res. Corp., 241 W. Va. 796, 808–09, 828 S.E.2d 858, 870–71 (2019) (emphasis added).
[6] Pennsylvania Game Comm’n v. Seneca Res. Corp., 84 A.3d 1098, 1106 (Pa. Commw. Ct. 2014).
[7] Schlueter v. Shawnee Operating Co., 535 N.Y.S.2d 867, 869 (Sup. Ct. 1988).
[8] Min. Co. v. Martin, 267 S.E.2d 721, 725 (WV Supreme Court of Appeals 1980)
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