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The Return of Briggs

By Keith B. Hall,
LSU Law School

A federal district court recently issued a decision, Briggs v. Southwestern Energy Production Co., 2025 WL 887779 (M.D. Pa.) (Briggs II), that involved the same parties and basic claim—a claim of subsurface trespass by hydraulic fracturing operations—as a prior case decided by the Pennsylvania Supreme Court in 2020.

Briggs I

Just a few years ago, Briggs v. Southwestern Energy Production Co., 224 A.3d 334 (Pa. 2020) (Briggs I) attracted a lot of attention. In that case the plaintiffs brought a trespass claim against Southwestern Energy Production Co. (“SWN”), alleging that SWN had conducted hydraulic fracturing operations on a tract adjacent to the plaintiffs’ land, and that these operations improperly facilitated drainage of natural gas from beneath the plaintiffs’ land.

Briggs I made its way to the Pennsylvania Supreme Court, and many people thought that the Court might decide, under Pennsylvania law, whether an oil and gas operator commits an actionable subsurface trespass if it causes fracturing fluid and proppants to enter the subsurface of a neighboring tract where the operator has no right to conduct operations, but the subsurface intrusion causes no harm, other than facilitating drainage of hydrocarbons. Similar claims previously had been addressed by the Texas Supreme Court in Coastal Oil & Gas v. Garza Energy Trust, 268 S.W.3d 1 (Tex. 2008), which held that there would be no actionable trespass under Texas law, and by a federal district court in Stone v. Chesapeake Appalachia, LLC, 2013 WL 2097397 (N.D. W.Va. 2013), which gave its Erie-guess that there would be an actionable trespass under West Virginia law. As it turned out, the Pennsylvania Supreme Court never reached the issue in Briggs I, for the reasons noted below.

In Briggs I, the plaintiffs never expressly alleged that SWN caused fracturing fluid or proppants to enter the subsurface of the plaintiffs’ land. Instead, the plaintiffs merely alleged that SWN had conducted hydraulic fracturing beneath adjacent land, and that this had caused hydrocarbons to drain from beneath the plaintiffs’ land, over to the adjacent land where SWN’s was conducting operations. Normally, the rule of capture precludes liability for drainage, but the plaintiffs argued that the rule of capture does not apply in unconventional formations if an operator uses hydraulic fracturing. The Briggs I trial court rejected that argument and granted SWN’s motion to dismiss on summary judgment.

The appellate court reversed. Portions of the appellate court’s opinion suggested that the rule of capture should not apply in unconventional formations if the operator uses hydraulic fracturing, but the court did not clearly base its opinion on that proposition. Instead, the appellate court appeared to analyze the case as if the plaintiffs had alleged a subsurface intrusion. The appellate court seemed to assume that, in an unconventional formation, natural gas will only drain from the immediate vicinity of areas that have been hydraulically fractured, and therefore that the plaintiffs’ allegation of drainage was an implicit allegation of a subsurface intrusion by fracturing fluid and proppants. The appellate court went on to hold that such a subsurface intrusion could give rise to an actionable trespass, even if the only alleged harm is the drainage of hydrocarbons.

The Pennsylvania Supreme Court reversed the appellate court’s judgment. The Supreme Court noted that a trespass is an unauthorized invasion of another’s property, and in Briggs I the plaintiffs’ pleadings never alleged a subsurface invasion. Therefore, the plaintiffs could not maintain a subsurface trespass action. To the extent that the appellate court might have reasoned that there could be no drainage without a subsurface intrusion of fracturing fluid and proppants, and that an allegation of drainage therefore was sufficient to maintain a trespass action, such reasoning would be an improper departure from Pennsylvania’s rules of pleading. The Supreme Court explained that a plaintiff must actually allege each element of a cause of action—including, in this case, an unauthorized invasion of their land.

Because parts of the appellate court’s opinion could be read as stating that the rule of capture should only apply to conventional formations, the Pennsylvania Supreme Court addressed that issue. The Court held that the use of hydraulic fracturing does not negate application of the rule of capture. Thus, if an oil and gas operator conducts hydraulic fracturing beneath land where it has operating rights, without intruding into the subsurface of neighboring tracts, the rule of capture applies, even if oil or gas drains to the operator’s well from the subsurface of the neighboring tracts.  Given that the plaintiffs had not alleged an intrusion of fracturing fluid and proppants into the subsurface of their land, the Court did not have to decide whether the rule of capture applies if an operator causes fracturing fluid and proppants to invade the subsurface of neighboring tracts where the operator lacks operating rights, thereby facilitating drainage from those neighboring tracts.

Briggs II In January 2021, the plaintiffs filed a new action against SWN in the Court of Common Pleas of Susquehanna County (Briggs II)  In Briggs II, unlike in Briggs I, the plaintiffs alleged that the defendant’s hydraulic fracturing operations caused fracturing fluid and proppants to invade the subsurface of the plaintiffs’ land. The plaintiffs argued that this invasion constituted a subsurface trespass, and that the defendant was liable for the value of all natural gas drained from beneath the plaintiffs’ land. The defendant removed the case to the United States District Court for the Middle District of Pennsylvania. After discovery, SWN moved for summary judgment. In discussing the motion, the court stated that the plaintiffs had not provided any competent evidence of a subsurface invasion (the plaintiffs did submit, however, an untimely and unsworn expert report). Because the plaintiffs bore the burden of proof, the court granted SWN’s motion to dismiss the case.  Further, because the plaintiffs did not present evidence to support their allegation of a subsurface invasion, the district court did not have to decide whether, under Pennsylvania law, a subsurface invasion of fracturing fluid and proppants could be the basis for an actionable trespass if the only alleged harm is the drainage of oil and gas. The court also stated a couple of other conclusions that are worth mentioning. The court noted that SWN held (by assignment) an oil and gas lease on the plaintiffs’ land at the time it conducted hydraulic fracturing operations on the neighboring tract. The court stated that, because of this, a subsurface intrusion of fracturing fluid and proppants would not have constituted a trespass anyway. The court did not discuss whether the defendant would have had to pay royalties under that lease (if the plaintiffs had proven both a subsurface invasion and actual drainage from their land, but the defendant had relied on the lease to defeat a trespass action) or whether the lease perhaps had an “adjacent lands” clause that would allow the lessee to use the leased land to facilitate oil and gas operations on neighboring land. The court also concluded that the trespass alleged by the plaintiffs would constitute a permanent trespass (a trespass that causes a permanent change in the condition of the land upon which the trespass occurs), rather than a continuing trespass (a trespass in which the intrusion is continuing, but there is no permanent alteration of the land). For a continuing trespass, the running of the statute of limitations may be delayed while the trespass continues, but when a defendant commits a permanent trespass, the statute of limitations on a trespass claims begins running when the trespass begins. Here, if the plaintiffs’ trespass claim had not otherwise been deficient, it would have been a time-barred claim for a permanent trespass.

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