and the plain and unambiguous language of the lease could not be clearer the lease is the date that remains in full force and in fact so long as cast is produced or stored or stored gas is protected because the meaning of the word or is clear and there is no dispute that the protection of gas has occurred throughout the life of the lease this lease is not sever ball and it remains in a fact your  district court judge judge's view of severability was something imported into the lease that's not included there that's right and he simply read the lease wrong and it's not only article four of the talks about the  or the right to store or the right to protect any one of those rights you have under the lease and and the duration is for five years or if you have an ongoing operation that's exactly right  it says the durations has to have and all to settle and and privileges for the sad purposes for five years or so long as there is production or storage or the protection of storage and if you look up at the purposes provision of the lease in section one the purpose is for exploring and operating for and producing and saving oil and gas and for storing gas in a substrata and protecting the stor may be the purpose but it's also the rights it's the scope of the lease absolutely in that same provision your honor it says that your company said after they signed that lease they told  war we're going to protect stored gas that's all we're going to do we're not going to drill and you kept going it would just never end until as long as you're storing stored at protecting store gas as long as we're doing one of the three things that  i think there's no need for certification to the west virginia supreme court in this case because the issue of law is tougher ability and there's no dispute as to what the law is severability is in west virginia the quinn case that was relied on the by the district court in both of the severability the only question is the application of the facts and that's clearly within the jurisdiction of the federal court they just did it wrong here and i think a good way to look at whether or not a question  certified to the west virginia court is what the question would be in this case i mean you sort of a question of law you don't ask them to apply the law to the facts they can't do that on a sort of high question and so here the only questions would be a what what is  ability in west virginia that is clearly defined by west virginia case that comes from the west virginia supreme court so it's simply not necessary in cases where this court has certified a question there's been questions about the interpretation of a statu so i just would like to point a couple places in addition to the payment provision which this court has noted i mean in addition to the duration provision which this court has noted the payment provision is also critical in determining whether or not a contract is verbal and here are the district court and candia rely on the payment provisions but they simply misread them the payment provision provides that there will be a payment if a well is trilled causes produce of one or a payment if there is a storage well in the rentals provision but there are in the royalty provision but there's also a rental provision that says if there's no producing well or if there's no storage well then a payment is also made for gas storage or the protection of storage so those are inextricably intertwined in order to tell what payment you receive you have to know if there's production and you have to know if there storage you can't sever this contract into two completely separate contracts as the district court did because you have to look at these provisions and see what exactly is being done under the lease and i also think it's critical for you to look at the caring provision caring provision it's also also called the delay rental and other leases and that rental says that you receive this rental up until there is either a producing well or storage and then if either of those occur the carrying rental goes away so again the provisions for payment are inextricably intertwined neither candy nor the district court provide any evidence to the contrary of this plain reading and as you mentioned sixteen other judges have applied substantively the same law as west virginia and pennsylvania and ohio and looked at essentially the same provisions of police and found that they are not summer ball and they're not binding on the score i do think that it's very persuasive they looked specifically in the panic and jacob's case at the  same payment provisions and found that they were an extra couple intertwined that they were in a related and so the they couldn't be severed and in the pennsylvania state court judge nelson warren looked at the layer into a provision that was the same as the caring rental in this case and again found just looking at data alone that the payments were inextricably intertwined the district court erred in four ways in reading the lease and applying the wealth  of west virginia to the facts the first was the case that he said that there were two purposes to the sleaze production and storage and there are clearly if you read the purpose provision at least three production storage and the protection of storage and the lassie can choose to do one two or all three of the option the court also said there was separate consideration as i just explained to you there is not the  consideration is intertwined the district judge relied on the fact that there was no requirement to drill as evidence that these were two separate contracts that were simply put together in the sleeze and in fact i believe that that's proof that the parties intended that this be one contract they expressly said you didn't have to drill a well you didn't have to have production in order to maintain the contract and finally the district judge said that the fact that there was no production was adamant that the contract could be severed into two and again this was an error because if you look at the supreme court's guidance in the quinn case they sad that you must and i think it's worth quoting look at the intention of the parties and such intention shall be ascertained from from a consideration of the subject matter of the contract here production storage and the production of storage a reasonable construction of the terms thereof again here you look at the purpose you look at the term you'll get the payments and the conduct of the parties during their negotiations all of which should be viewed in leases like this one so it doesn't matter what the parties are doing to die in terms of an analysis of severability the court has said you look at the intent of the parties at the time they entered into the contract the intent is clear from this contract every pervasion makes that clear plaintiff's never explain why this reading is not correct they never offer an alternative meaning or even quote the relevant language in their brief and then they never argue even that the minuscule i apologize your honor type version and you did i miss it somewhere in the there is not a reproduce copy of the entire lease in the joint appendix version it to sixty is at is the recorded but i would be happy to reprint it for you and provided to the court i apologize that it's difficult to read your honor that's the issue with many of the appalachian leases as i'm sure you're aware as more of these cases come before you you're honest candy raised other issues in their response brief that we believe are relevant were not raised in the lower court or are improper on appeal over lie on my reply brief and you must you have any other specific questions for me today didn't address the issue because it didn't it didn't or it did not summary judgment on the issue of whether the entirety of the lease process was necessary for protection right now and it is requiring the drillers to give the protection that the law requires in regulations and statutory regulation but how does that relate to how does that inform the determination of the law or how does that inform the interpretation of the lease going back to your characterization that the district court did something unique it did do something really that it did call it or do purposely so that's what they call that there were two purposes in the lease each of which would be enforced in their own rights that they would have access to the storage protection that is given to them because they have asked for storage protection storage protection has certain drills through instructions which cost a dollar in the neighborhood of one hundred thousand dollars we will follow those drill those drill through instructions whenever we drill they're paying us eight hundred nine hundred dollars a year for storage protection we will in turn spend one hundred thousand dollars to protect the storage and that's the question we're back to the relevance of  which does not interfere with this protective zone because it's below the protective zone marcellus these these stories as leases are in a seam that's about two thousand feet deep it's called the keeners strata here where the begins and sands that's where they store the gas it's and the protective son has to tap do you dispute the fact that they are still protecting stored gas right now on the hundred eighty acres on part of it they are on part of the one hundred eighty acres for the purposes of one a b and c one of the things is to protect stored gas or oil and that's what they're doing you could see it at that now they don't have to use every square inch they got statutes that require the two thousand foot barrier they don't require the entire lease i understand you can maybe construe that but that isn't what this least not here let's stay out of that and the question is where in this lease does it gas storage but i don't see any hook that allows you to question their ability to use the entirety if the if you were governing if you were going by the intent of the parties it just doesn't seem church case was an eight hundred fifty acre lease where there was one brown one well drilled but it was not maximized for production purposes court ruled in st luke's church case  and gas is being produced for free gas i'm like we have several laws in our state that allow us to drill where are you arguing that laws overrule this contract now i'm just saying it helps us interpret the contract because that contracts clear it's an ambiguous if for vides exclusive possession to the lessee exclusive possession of one hundred eighty acres for purposes of a b or c and they have the right to do a b or c and if they do gain gauge in any of those beyond the five years they can continue as long as they're doing that and that's it seems to me that a contract is a kind of you're not addressing the contract in your brief or an argument for  it was a do purpose contract look we're up here to construe it right right all right we're reviewing the core of work we're forms they argue that the court is wrong so now you need to go back to what we're supposed to look at which is to determine whether the court was correct and this case provides for a lease and respect i beckley submit it has at least three purposes defined in the lease which is different from dual purpose it has any one of them are rights that you can exercise under the lease exclusive rights four hundred eighty acres and i don't understand how you get around that the court said that the entire hundred acres was not needed for storage protection you said it's needed they ren it for this purpose that's for the purpose of stories protection wasn't defined when that lease was prepared one thousand nine hundred nine the way it is now it's changed in time are they entitled to what they read to at the time you can't change under the constitution you can't change contract we understand th where you have to show us in the least serious what supports the term relation or to look specifically at the entire lease and determine that the purpose of the lease was to provide for the exploration of oil and gas is defined as one of the purposes the orders to find and limit each each one of those ores gives certain obligations and the court broke it down into a dual purpose because of that because of the yours or did look at a two cases the coin case in the region case both of which allow for dual purpose leases and you'll note that the parties enter into stipulations of fact and that's what the court finally dismayed its decision upon because according to put some type of a what you're extending the lease is defined in section one article one which is an exclusive possession of one hundred acres for any of three purposes and then storage rights they don't have only needed one we don't divide the contract up and say they didn't need the other to do it and i apologize wrong but that's what the court didn't well that doesn't give you support does it you're trying to argue that the court was was right because quote the court was looking at was how do you interpret storage rights in a reasonable fashion and that's what the court stated it asked the parties to come up with a reasonable rise to the storage and that's how we you to not tell me what the court did right or what are good i want you to tell me why the court was right relying on what the court would look at in the court look only at this lease right and look at the separate considerations that are involved and that's why they separate that was part of the rulings that i want may only why the court was right if this consideration a single oh i don't want to know what they did i want you to tell me why i was right because the court decided to divide the lease and not developing this oil and gas we heard financially from not developing your own gas they are protected her story is you don't have this lease and somebody else does they're not developing it either they're paying for what they they're paying the rent that it provides for every year they pay their rent for storage well that's the rate for that that depends on what they do they can pay up there are paying to develop it and they're not developing it and say no but they're not they don't want to develop it and they don't have to i don't understand where you're getting all these ideas that we can screw the intent of the parties court looked at lease and separated and that's where the problem seems to be  and the court directed that we put up developments in charge they could have entered into a lease and said we're going to grow sunflowers now they are in i mean the idea that you have to judge whether their lease is reasonable or not whether they got what they wanted with their getting protection what they got is what they agreed to get and what was given is what they agreed to give and you keep wanting to change that and you do it by saying what the district court didn't stutter pointed out in the lease why you think that that's a reasonable way to read a lease well or are what i'm saying about the provision in there for storage and for storage protection cases that were signed there from ohio and pennsylvania are all dealing with storage not storage protection the last case that they cited dealt with a storage protection issue i think that was  agreed that they have the right to protect storage they have the right and we have a right to define how to protect the storage two thousand feet that's i'm all alone as the term is the law has determined that it's two thousand face up the lease as they have one hundred that protected zone was what we're dealing with we're not going to interfere with the protective sun we'll provide the protection that needs to protect the storage that's an extra cost that we have when we're drilling in a protective zone but we are saying that we have that fields there are you know as the court noted there are several examples where you drill through storage field and all you have to do is follow these your price wasn't high enough we try to negotiate we list for a price with me storage is protected and we're looking at that possibility  the leases the court found that that leases for the protection of stories we did remain in effect they were not void and the energy of the property under the leases is not necessary for gas storage protection they did not need all property and they also found you really don't need to tell us what the district court did where we're reviewing it you're trying to justify what the district court yes yes and so every argument you make ought to be made without relying on the district court for your authority object of our review yes and it seems to me that every argument you're supporting about what the district court did i'm sorry ron now it's that it doesn't advance your argument i'm sorry you don't need to apologize i just want you to go we're trying to fix the problem is that the language of the lease it isn't clear that the language of the lease gave him the latitude that he will try to proceed to create  look at that at these leases and try to balance the interests of that no one has heard the story just as being protected it's not being interfered with and one of that can block the development on gas lease was a question of the that the court had looked at and they looked at it in a favorable decision for the development of the oil and gas you know everyone has a right to develop their resources and that's basically what we're asking didn't you if a court gave you the right to drill in an area which would not affect their storage then the court would be interfering with the lease with that which is exclusive a section of hundred eighty acres for as it were just weird contracts are often interpreted and our statutes have often interpreted contracts in a way that is different in west virginia many people had a three hundred dollar per year lease on their own oil and gas this our court has come along with the idea that everyone is entitled to an eight royalty were not entitled to just three hundred dollars a year statute changed those leases statutes change this lease because now they are protective zone as is limited to two thousand feet it can extend over the entire property it's only limited by statute to two thousand feet so the statues have an effect agreed that we would protect the storage we're just wanting the right to develop it and that was the reason the court ruled as a dual purpose lease the reason it was decided in the district court is a dual purpose leases because of the benefits that it gives to all candy so it's not in his shyness case and quite frankly it's a red herring the we have the storage protection rights that's not an issue we're protecting storage and they're the as you and he says allowing