United States: Recent Court Decisions May Affect Hydraulic Fracturing In New York And Ohio

Three recent court decisions could affect parties with an interest in hydraulic fracturing, particularly in New York and Ohio. Two New York courts held that New York's Oil & Gas Law does not preempt local zoning ordinances that completely ban hydraulic fracturing, and an Ohio court issued a ruling that could impair stakeholders' ability to conduct hydraulic fracturing operations in that state.

Local Fracking Bans Upheld in New York

New York's Oil & Gas Law preempts "all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries." Two lower courts in Anschutz v. Town of Dryden and Cooperstown Holstein Corp. v. Town of Middlefield recently held that this language does not preempt local zoning ordinances that completely ban hydraulic fracturing.

Both courts drew a sharp distinction between "where" (land use) and "how" (operational) zoning rules, and went on to narrowly interpret "relating to" as referring only to the latter—i.e., as preempting only local zoning regulations that seek to control how oil and gas operations are conducted. Because the Dryden and Middlefield zoning rules did not regulate fracking operations per se, but instead addressed where such operations could take place, the courts concluded that the zoning rules did not come within the Oil & Gas preemption language, but were a proper land use restriction reserved to municipalities by New York's Home Rule laws.

Appeals are expected in one or both cases, and it is likely that neither will withstand appellate scrutiny. Both courts failed to recognize critical distinctions in the New York mining law cases on which they relied, and the Dryden court in particular cited several non-New York cases that actually contradict the decision it reached. Moreover, a close review of the legislative history makes clear that these decisions undermine the New York Legislature's simple goal in passing the Oil & Gas Law preemption provision: to avoid a patchwork quilt of local regulations that would undermine the efficient development and production of New York's oil and gas resources in a way that prevents waste and protects property rights.

For now, however, the potential import of both rulings cannot be overstated. It is estimated that up to 50 percent of the Marcellus Shale in New York will be put off-limits by the New York State Department of Environmental Conservation's (DEC's) proposed rules, and more than 80 towns and municipalities have passed (or are poised to pass) local bans that could further narrow the available fracking plays. DEC Commissioner Joe Martens has stated publicly that the agency's final rules may account for local zoning ordinances—a potential incentive for municipalities to follow the lead of Dryden and Middlefield. Overall, fracking stakeholders may find it difficult to commit capital for land leases or acquisitions given the uncertainty that has been created by these two decisions.

Ohio Decision Prohibits Surface Activity to Access Natural Gas

An Ohio court recently interpreted fairly common mineral grant language in a way that could significantly impair stakeholders' ability to conduct hydraulic fracturing operations in that state.

At issue in Jewett Sportsmen and Farmer's Club, Inc. v. Chesapeake Exploration, LLC, was a land deed that reserved to the seller all mineral rights beneath the property, as well as the right to go "through and under" the property to access minerals on adjacent lands. The seller had just completed construction of a hydraulic fracturing drilling pad at the property when the surface rights owner moved for an injunction prohibiting all surface activity, including the drill pad.

Interpreting the deed, the court ruled that the seller had a right to reasonably use the property surface to access natural gas located within the property boundaries, but did not have a right to use the surface for purposes of accessing natural gas beneath adjacent tracts of land. Specifically, the court focused on the "and" in the "through and under" language of the deed, and interpreted it to mean, literally, that any oil or gas originating outside the property boundary could only be removed by the seller if the activity remained exclusively beneath the property surface. The court suggested that its ruling might have been different if the deed had been drafted to read "through or under."

This decision may pose significant risk to stakeholders looking to do business in Ohio. Mineral rights leased or purchased by stakeholders today are often the subject of deeds granted decades ago, when the focus was on mining, not natural gas development. These mining deeds commonly used the "through and under" language as a way to limit surface activity (e.g., strip mining) that was deemed antithetical to the interests of property owners. That language, even if correctly interpreted by the court in Jewett, poses unique problems in the context of hydraulic fracturing, where large subsurface areas are necessary for adequate well production. The Jewett decision may force fracking stakeholders to negotiate new terms with property owners, purchase or lease adjacent properties from which to conduct drilling operations, or extend subsurface operations beyond what is practical from a financial or technical perspective. Because these options drive up exploration and removal costs, they may make otherwise viable fracking plays unprofitable. Even on large parcels, such as the one at issue in Jewett (177 acres), given the extensive length of most horizontally drilled wells and the large subsurface areas that are affected by the fracking process itself, one can imagine a landowner arguing that just about any fracked well will "capture" gas from outside the property—and therefore that the wells or well pad must be located somewhere other than the property itself. Stakeholders holding legitimate mineral deeds may find themselves in costly fights with property owners over surface rights, where the burden of proof will be hard to meet. These battles may make fracking at or from a particular property uneconomical in Ohio.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.