Robbie Hill; Gwenna Hill; Joseph Smith; Catherine Smith; Kathy L. Hamilton; Jerry Van Wormer; Randy Palmer; Joyce Palmer; Larry King; Margaret King; Adam Kofoid; Bradley Hooper; Crystal Hooper; Corey Warden; Julie Warden, Plaintiffs
Southwestern Energy Company, Defendant-Appellee Dale Stroud; Kari Stroud, Plaintiffs-Appellants Chesapeake Energy; XTO Energy, Inc., Defendants SEECO, Inc., Defendant-Appellee
Submitted: December 14, 2016
from United States District Court for the Eastern District of
Arkansas - Little Rock
WOLLMAN, SMITH  , and BENTON, Circuit Judges.
BENTON, Circuit Judge.
Energy Co. disposed of fracking waste near the property of R.
Dale and Kari B. Stroud after they refused to lease their
property to SWE. The Strouds sued, claiming SWE's waste
migrated onto their property. The district court granted
SWE's motion for summary judgment based on the
insufficiency of the Strouds' proof. Having jurisdiction
under 28 U.S.C. § 1291, this court reverses and remands.
facts are "viewed in the light most favorable to the
[Strouds]." See Torgerson v. City of Rochester,
643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). SWE extracts
natural gas through hydraulic fracturing, breaking open
natural rock formations and extracting the natural gas. As
part of those operations, SWE must dispose of
chemical-containing waste water.
Strouds' property is an exhausted and plugged production
well. In 2009, an SWE representative (a "landman")
approached Dale about disposing of fracking waste on their
property. Negotiations were unsuccessful. SWE leased the
right to dispose of its fracking waste through a well on
neighboring property. According to Stroud's affidavit,
the landman later told him he had been greedy and that SWE
would "use the well on [the neighbor's] property to
fill up the empty gas space under [the Strouds'] property
since it was all connected."
well SWE drilled-the "Campbell well"-is 180.3 feet
from the Stroud property line. SWE leased a surface area of
3.29 acres and disposed of approximately 7.6 million barrels
of fracking waste. If the leased area were 100% porous (which
it is not), it would hold just under 1.1 million barrels. As
the district court noted, experts unanimously agree that this
volume of waste "could not possibly fit in the reservoir
space directly beneath the leasehold."
drilling the Campbell well, SWE got approval from the
Arkansas Oil and Gas Commission. In those proceedings, it was
assumed the waste would migrate radially-the general presumed
movement pattern for unimpeded liquids. However, the
Commission's primary focus was not the migration pattern
of the waste, which was not questioned or scrutinized.
Campbell well drilled into the Barton B. Sands reservoir, a
formation thousands of feet underground that is depleted of
natural gas and was available for fracking waste. The Sands
reservoir runs beneath the Stroud property. The reservoir is
heterogeneous, with both sand and rock. Obstacles capable of
sealing fluid flow-clay shales and silica overgrowths-are in
the area. However, there is no evidence that any of these
impediments would prevent fracking waste from the Campbell
well from flowing onto the Stroud property.
Strouds claim that-based on the volume of disposed waste, the
small volume under the leased area, the proximity of the
Strouds' property, and the assumed radial flow-the
fracking waste migrated into the subsurface of their
property, resulting in trespass and unjust enrichment. There
is no evidence of surface contamination on the Strouds'
property. Instead of drilling to obtain a sample or creating
a computer model based on seismic data-both, according to the
Strouds, prohibitively expensive-they hired an expert to
calculate the radial flow of the fracking waste. The district
court ruled his report unreliable.
district court had ordered phased discovery, the subject of
multiple disputes. It ordered: "The first, and primary,
issue for discovery is whether the waste fluid has migrated
to the subsurface strata of the [Strouds'] real
moved for summary judgment at the end of the first phase of
discovery. The district court granted SWE's motion,
despite acknowledging it "seems likely,
considering all the circumstances, that the waste migrated
under the Strouds' land" and that the remaining
evidence "adds up to a strong 'maybe.'" The
court thought that a reasonable "juror would have ...