Energy Law Update: Kentucky Circuit Court Holds Coalbed Methane in Mine Void Can Be Produced by Non-Coal Owner; Leaves Unchanged Prior Holding That CBM is Owned by Coal Owner While in Coal Seam
The Hopkins County Circuit Court ("the Court") issued an order on May 29, 2009, (Bowles v. Hopkins Co. Coal, LLC, No. 06-CI-000395 (Hopkins County Ky. Cir. Ct. Feb. 13, 2009)) holding that Plaintiffs, the owners of all non-coal minerals, could produce the coalbed methane ("CBM") located in coal mining "voids," but only when such production does not interfere with mining operations, or when all coal mining operations have ceased. In determining whether mining operations have ceased, the Court stated that even though all coal may be mined from beneath a property, the coal owner is still entitled to use the voids to transport coal or for "any legitimate purpose" so long as the mining operation is ongoing. This holding is in addition to - and leaves unchanged - the Court's February 13, 2009 determination that CBM is owned by the coal owner so long as CBM remains within the coal seam and, if the CBM migrates from the coal seam or vein, it is then subject to capture by Plaintiffs.
Plaintiffs filed a Notice of Appeal on June 26, 2009, which appeal has not yet been heard.
D. Eric Lycan
1010 Monarch St.
Suite 250
Lexington, KY 40513
859.219.8213
eric.lycan@steptoe-johnson.com
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