IN THE CIRCUIT COURT OF DODDRIDGE COUNTY, WEST VIRGINIA
EQT PRODUCTION COMPANY,
a Pennsylvania Company,
Petitioner/Plaintiff,
v. Civil Action No. 12-C-17
DODDRIDGE COUNTY COMMISSION,
Respondent/Defendant,
and
JOYE HUFF, AS TRUSTEE OF THE
RANDY E. HUFF DECEDENT’S TRUST B;
and
WILLIAM L. HUFF,
and
JAMES H. FOSTER,
Intervenors/Defendants.
INTERVENORS’/DEFENDANTS’
ANSWER TO VERIFIED PETITION OF EQT PRODUCTION COMPANY,
and
COUNTERCLAIM AGAINST PLAINTIFF EQT PRODUCTION COMPANY
and
CROSS-CLAIM AGAINST DEFENDANTDODDRIDGE COUNTY COMMISSION
INTERVENORS’ ANSWER
Intervenors Joye E. Huff, as Trustee for the Randy E. Huff Decedents Trust B, William L. Huff, and James H. Foster (hereinafter collectively referred to as “Intervenors”), by and through their attorney of record, William C. Thurman, Esq., file this Answer in Intervention to the Petition of Plaintiff EQT Production Company (hereinafter “EQT”) as follows:
Intervenors admit the allegations of Paragraphs 1 and 2.
Intervenors admit the allegations of Paragraph 3 but further affirmatively state the Doddridge County Commission must follow the provisions of the West Virginia Constitution providing for due process rights of notice, right to a hearing, notice of right to appeal, and so on when there are interests affected by actions of government.
Intervenors admit the allegations of Paragraphs 4and 5, and regarding Paragraph 6 affirmatively assert the date of filing was actually November 22, 2011.
4. In response to Paragraph 7, Intervenors state that they have heard that there is a floodplain study, Intervenors did not receive a copy from EQT despite repeated requests. Further, there is not a copy of a floodplain study in the Doddridge County Clerk’s file for the floodplain permit giving rise to this action. Additionally, no person, entity or government agency has been able to provide Intervenors with a copy despite repeated requests. Intervenor concedes that there is a study of some sort attached to Petitioner’s complaint in this action, but Intervenors have not had an opportunity to review its contents or assess its validity.
Intervenors admit the allegations of Paragraph 8.
Intervenors admit the allegations of Paragraph 9, but state that the reason that Intervenors and any other interested parties did not object or comment on the floodplain permit application is because notice of the application for or the issuance of the permit was never given, and thus, as far as Intervenors are aware, no one was afforded an opportunity to object or comment on the permit. The Doddridge County Floodplain Coordinator, Jerald Evans (hereinafter referred to “Evans”) did not provide notice to the Huffs despite the fact the permit was issued to allow construction in a floodway and a floodplain on the Huffs property and the fill was going to be taken from and used on the Huffs’ property. Additionally, none of the upstream
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or downstream neighbors (including Foster) or the public were given notice. This complete lack of notice violates the due process clause of the West Virginia and United State Constitutions as well as THE COMMUNITY COMMENT REQUIREMENT OF THE DODDRIDGE FLOODPLAIN ORDINANCE. Further, Intervenors and their neighbors could not have had inquiry or constructive notice via seeing Evans at the Huffs property because Evans never conducted a site inspection nor any effective review of the application prior to its issuance.
6. Intervenors are without knowledge or information sufficient to form a belief as to the allegations of Paragarph 10 and demand strict proof thereof.
7. Intervenors admit the allegations of Paragraphs 11 and 12.
8. Intervenors are without knowledge or information sufficient to form a belief as to the allegations of Paragraph 13 and demand strict proof thereof.
9. Intervenors admit the allegations of Paragraph 14.
10. Intervenors admit the allegations of Paragraph 15, but state that unlike the instant action, all affected parties and potentially affected parties received notice of the Huffs application for a water well permit. Additionally, unlike the instant action the Huffs fully complied with the requirements set forth by the designated governing body, Doddridge County Health Department, as to the process for obtaining a permit and procedures for drilling the water well. Further, unlike the instant action, a representative from the County Health Department actually conducted a site visit and a review of the permit application. Interestingly, unlike the instant action, Intervenors are unaware of any requirement to obtain a building permit prior to drilling a County Health Department permitted water well in Doddridge County, and Intervenors are perplexed as to why Plaintiff raised this non-issue in the first place.
11 Intervenors admit the allegations of Paragraph 16.
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12. In regard to Paragraph 17, Intervenors do not understand the allegation, specifically it is unclear if Plaintiff is alleging that Joye Huff knew about the permit within 30 days of its issuance and failed to appeal. If that is what Plaintiff intended with this allegation, then Intervenors deny the allegation. If Plaintiff is alleging Joye Huff became aware of the permit at some point in time and has not yet appealed, then Intervenors admit that Joye Huff discovered the existence of the permit several months after its issuance and independent of any action, required notice, or courtesy extended by either Plaintiff EQT or Defendant Doddridge County Commission.
13. Intervenors admit the allegations of Paragraphs 18 in full and admits 19 only to the extent that the admission is based solely on seeing Plaintiff’s “Exhibit F” on Friday, May 18, 2012.
14. In regard to Paragraph 20, Intervenors admit if Plaintiff intends to allege that the Doddridge County Commission did not receive an appeal from Intervenors within 30 days of the permit issuance date, but further affirmatively assert that the opportunity for a “timely or procedurally valid appeal” never existed as no notice was provided to Intervenors, the Huff’s neighbors, or the Community as a whole as required by the U.S. Constitution, the WV Constitution, and the Doddridge County Floodplain Ordinance.
15. Intervenors deny the allegations of Paragraph 21 and further affirmatively assert that the Commissioners did not hear an untimely appeal. What actually happened was the Commission discussed a prior telephone call made to Commissioners Williams and Evans by Kevin Sneed of FEMA wherein Mr. Sneed informed the Commissioners of various floodplain ordinance and FEMA violations that occurred during the permit “review” and during the application process. Mr. Sneed further informed the Commissioners in said phone call that
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Doddridge County risked losing Federal Flood Insurance due to the illegal issuance of the floodplain permit to EQT. Following the discussion of the phone call, Jerry Evans revoked the permit giving rise to this suit while Evans was acting in his capacity as Floodplain Administrator and within his authority as Floodplain Administrator to revoke a floodplain permit pursuant to Doddridge County Floodplain Ordinance (see Article VII, section 7.7 “Stop Work Orders, Inspections, and Revocations)
16. Intervenors admit the allegations of Paragraph 22 only as to the allegation that Evans was Floodplain Administrator and signed the rescision/revocation of the EQT permit in his capacity as Floodplain Administator. Intervenors also note that the letter (Plaintiffs’ “Exhibit H”) confirms and substantiates Intervenors’ paragraph 14 response which states that the revocation was based on a call with FEMA representative Kevin Sneed and not as the result of an “untimely and procedurally invalid appeal” as EQT representative Bryant Wayne Bowman, II states under penalty of perjury is a “true” fact based on his personal knowledge in Paragraph 21 of Plaintiff’s Complaint. Intervenors further note that said letter provides a laundry list of violations of the Doddridge County Floodplain Ordinance and provides assurances that, upon actual compliance with the Floodplain Ordinance, the Community will be given an opportunity to consider “the various issues that have the potential to cause adverse impact to adjacent properties”(like Foster) as required by the Floodplain Ordinance.
23. Intervenors deny the allegations of Paragraph 23, and the Intervenors direct the Court’s and Plaintiff’s attention to the Doddridge County Floodplain Ordinance, Section 7.7(A)(2), The Floodplain Administrator shall issue, or cause to be issued, a Stop Work Order Notice for any development found non-compliant with the provision of this law. . . and Section 7.7(B)(2) which allows the Floodplain Administrator unilaterally revoke a permit when the
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Floodplain Administrator discovers that the work “does not comply with the permit application or any applicable laws and ordinances or that there has been a false statement or misrepresentation by any applicant, e.g. indicating on a Floodplain Permit Application that development/ improvement for 12 horizontal gas wells, a wellpad, the various tanks and attachments as well as moving 60,000 cubic yards of fill into the meadow (a floodway and floodplain) is only estimated to cost EQT the bargain rate of $40,000.00. (See Plaintiff’s Exhibit A, Floodplain Permit above the County Floodplain Manager aka Administrator).
24. Intervenors admit the allegations of Paragraphs 24, 25 and 26.
25. Intervenors admit the allegations of Paragraph 27, however EQT counsel proffered that thre rescision “would be withdrawn, if not by 10 a.m., at least by the end of the day” which did not occur. The rescision is still in place subject to any action that may be taken at the appeal hearing on May 22, 2012.
26. Intervenors admit the allegations of Paragraph 28, but add that the specific language of Article VIII, Section 8.1 of the Doddridge County Floodplain Ordinance is broader and applies to more than just those “aggrieved by the issuance of the Floodplain Permit”. Specifically, the Ordinance says, “[w]henever any person is aggrieved by a decision of the Floodplain Administrator with respect to the provision of this ordinance, it is the right of that person to appeal to the Doddridge County Commission which shall be known as the Appeals Board.” (emphasis added). Note, Section 8.1 does NOT state that the Floodplain Administrator has to make the decision in a bubble, while solely wearing the hat of the Floodplain Administrator, and in total isolation...the Section merely states that if the party is aggrieved by a decision made by the Floodplain Administrator (as the Court is aware, the rules of statutory construction require that words in statutes be given their plain meaning. Here the plain
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meaning of a decision by the Floodplain Administrator is simply a decision by the Floodplain Administrator. Plaintiff impermissibly seeks to add meaning to the Ordinance beyond the simple, plain words contained in it, i.e. decision + made by floodplain administrator + party aggrieved = appeal ). In this case it is abundantly clear that Jerry Evans made a decision as Floodplain Administrator that aggrieved Plaintiff. In fact, it doesn’t get much more obvious that you’ve been aggrieved by a decision made by the Floodplain Administrator than a letter signed by the Floodplain Administrator which revokes your permit. As such, Plaintiff has the right to seek appeal to the Appeals Board aka the Doddridge County Commission. Plaintiff has not exercised its right and has instead sought court intervention, while at the same time lecturing Intervenors for not exercising their right to appeal within the thirty day period. Plaintiff’s righteous indignation at Intervenors’ “failure to make a timely appeal” is all the more
unimpressive given the fact Intervenors did not receive notice until months after the 30 day period elapsed, the fact Plaintiff thinks so little of its sacred right to appeal that it seeks to skip it altogether, and the fact, that despite Plaintiff’s refusal to ask for its right to appeal, the Appeals Board has kindly given Plaintiff an unrequested gift appeal hearing (meanwhile Intervenors were an afterthought not deserving of notice of the issuance of a floodplain permit that allows Plaintiff to ruin the Huff farm’s only meadow , endanger the Huffs, Foster, and the other adjacent landowners by filling the meadow/floodway/floodplain with 60,000 sq yards of fill, 12 horizontal wells, and a massive wellpad). Intervenors should be so lucky to be as mistreated by the floodplain powers that be as the Plaintiff has been.
27. Intervenors admit the allegations of Paragraph 29, but add as previously noted, the Floodplain Coordinator is free to act of his/her own accord per the Ordinance and is not dependent on a “formal appeal” to be able to take action.
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28. Intervenors admit the allegations of Paragraph 30.
29. Intervenors deny the allegations of Paragraph 31 and point to EQT counsel David K. Hendrickson’s letter to the Doddridge County Commission and Jerry Evans as “Doddridge County Floodplain Manager” dated May 1, 2012 wherein David Hendrickson asked for the Doddridge County Commission (aka the Appeals Board) to provide an “appropriate response” to his letter, expresses his client’s grievances against the permit rescission and letter notifying EQT of the action taken by rescission, both of which were done, per Mr. Hendrickson, by Jerry Evans as Floodplain Manager (a copy of said letter is attached hereto as “Intervenor’s Exhibit “A”). Intervenor’s contend that this letter by EQT’s counsel constitutes a written appeal filed with the County Commission by a party aggrieved by a decision of the Floodplain Manager (Hendrickson concedes that the rescission did not come as a result of a formal vote by the Commission, but
rather by the three commissioners taking action and “directing” Floodplain Manager Evans to rescind the permit.
However, Intervenors contend that it would take a suspension of logic for Floodplain Manager Evans not to have made a decision to revoke EQT’s permit because : a) Decision is defined by Merriam Webster as the act or process of deciding and a determination arrived at after consideration: b) as previously noted the rules of statutory construction dictate that words in a statute be giving their plain meaning (i.e. deciding is defined by Merriam Webster “as coming to a resolution of the mind after the process of consideration”, therefore a decision basically means thinking and then choosing): c) Evans is a member of the commission and also the Floodplain Administrator so it would be a fiction to say his directing himself is not a “decision” because, in fact, self-direction is the very essence of decision making. Further, Commissioner Jerry Evans somehow directing Floodplain Manager Jerry Evans to take an action with only the former
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making a decision is absurd because they are the same person.; and d) the rescission letter to EQT dated 4/18/12 contains a thought process and a decision and is signed by Jerry Evans as “Doddridge County Flood Plain Manager”. There are no allegations of fraud, the signature matches the one on the Floodplain Permit, so it is safe to say that Jerry Evans made a decision as Floodplain Manager despite Mr. Hendricksom characterization that he was “directed” to rescind the permit. Mr. Hendrickson does the following in the letter: (1) admits Jerry Evans was acting as the floodplain manager when the permit was revoked (and the revocation was Evans decision, i.e. no formal vote by the commission); (2). admits Jerry Evans gave him notice of the rescission while acting as the floodplain manager; (3) asserts that it was without legal authority and that the rescission is the only thing blocking EQT (that sounds like "aggrieved” pursuant to 8.1(1); and
(4) requests, in writing, a response from the County Commission (aka the Appeals Board) and
Jerry Evans by May 2, 2012. Put that all together and what do you have? An appeal, made in writing, within 30 days, filed with (hand delivered in fact) the Doddridge County Commission (aka the Appeals Board). The Doddridge County Commission, as the Appeals Board set a hearing date for May 22, 2012, at the Doddridge County Courthouse, which is a "time and place not less than 10 days (its 21) nor more than 60 days for purposes of hearing the appeal.”
30. Intervenors deny the allegation of Paragraph 32, and affirmatively assert that the Floodplain Permit expired on 5/20/12, 180 calendar days after issuance.
31. Intervenors deny the allegation of Paragraph 33 and further affirmatively assert that pipeline agreements have not been negotiated, no waiver of coal rights has been signed, and upon information and belief no waivers by owners who also share royalty interests have been signed.
32. Intervenors are without knowledge or information sufficient to form a belief as to the allegations of Paragarph 34, but point out that much of the geological and other work would
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pertain to the exploration and production for the minerals no matter where the well pad was located, and therefore demand strict proof thereof.
33. Paragraph 35 is not an allegation of fact that requires a response.
34. Intervenors admit the allegations of Paragraph 36, but add that the County Commission must also comply with the Due Process Clause of the West Virginia Constitution.
35. Intervenors deny the allegations of Paragraph 37 in that their application fails to comply with the requirements of the ordinance as the same is more fully set out in their Counterclaim and Crossclaim herein below, and further that the procedures followed failed to comply with the Due Process Clauses of the West Virginia Constitution and the United State Constitution.