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IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

EQT PRODUCTION COMPANY, 

Petitioner Below, Petitioner 

vs.) No. 22-ICA-305 (Cir. Ct. Marshall Cnty. No. 22-P-6) 

MATTHEW R. IRBY, STATE TAX 

COMMISSIONER OF WEST VIRGINIA, 

THE HONORABLE ERIC BUZZARD, 

ASSESSOR OF MARSHALL COUNTY, 

AND THE COUNTY COMMISSION OF 

MARSHALL COUNTY, SITTING AS A 

BOARD OF ASSESSMENT APPEALS, 

Respondents Below, Respondents 

MEMORANDUM DECISION 

Petitioner EQT Production Company (“EQT”) appeals the November 15, 2022,

“Order Granting Respondents’ Motion to Dismiss” from the Circuit Court of Marshall 

County. Respondents, Matthew R. Irby, as West Virginia State Tax Commissioner, and the 

Honorable Eric Buzzard, as Assessor of Marshall County, timely filed a response in support 

of the circuit court’s order. The County Commission of Marshall County timely filed a 

summary response.1

 EQT filed a reply. 

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-

11-4 (2022). After considering the parties’ arguments, the record on appeal, and the 

applicable law, this Court finds that there is error in the circuit court’s decision but no 

substantial question of law. Therefore, a memorandum decision reversing the circuit 

court’s order is appropriate under the “limited circumstances” requirement of Rule 21(d) 

of the Rules of Appellate Procedure. 

This case arises from a protest of a property tax appraisal of EQT’s twenty-seven 

producing horizontal natural gas wells in Marshall County by the West Virginia 

Department of Revenue, State Tax Department, Property Tax Division (“Tax 

1 Petitioner is represented by Carte P. Goodwin, Esq., Craig A. Griffith, Esq., and 

Alex J. Zurbuch, Esq. The West Virginia State Tax Commissioner and the Marshall County

Assessor are represented by R. Terrance Rodgers, Esq., and Jonathan Nicol, Esq. The 

Marshall County Commission is represented by Joseph R. Canestraro, Esq. 

FILED

December 15, 2023

EDYTHE NASH GAISER, CLERK

INTERMEDIATE COURT OF APPEALS

OF WEST VIRGINIA
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Department”), and the property tax assessment by the Marshall County Assessor 

(“Assessor”) for the tax year 2021. The Tax Department appraised the wells at 

$221,378,791 and the Assessor assessed them at 60% of their appraised value for tax year 

2021.

On February 18, 2021, EQT submitted an Application for Review of Property 

Assessment to the Marshall County Clerk, the Assessor, and the Tax Department. EQT 

appeared with counsel on October 28, 2021, before the Marshall County Commission 

sitting as a Board of Assessment Appeals (“BAA”). EQT alleged that Chevron USA, Inc., 

(“Chevron”), from whom EQT had acquired the wells in 2020, had erroneously reported 

gross receipts from natural gas liquids on its 2021 property tax returns, thereby causing the 

Tax Department to grossly overvalue the wells. The BAA, by order dated December 21, 

2021, upheld the appraisal and assessment and made no adjustment to the Tax 

Department’s valuation of the wells for tax year 2021.

On February 8, 2022, EQT appealed the BAA’s decision to the Circuit Court of 

Marshall County. On June 1, 2022, the Tax Department moved to dismiss EQT’s appeal 

for lack of subject matter jurisdiction, arguing that EQT did not have standing. The BAA 

filed a similar motion on the same grounds on June 6, 2022. 2 The case was referred to the 

Business Court Division on August 25, 2022, and the motions to dismiss were granted 

without oral argument by order dated November 15, 2022.

The basis for the dismissal was that EQT did not have standing because Chevron 

owned the wells when the 2021 property tax appraisal and assessment were completed, and 

although EQT apparently contracted with Chevron to pay any property taxes associated 

with the wells for tax year 2021, EQT could not challenge the taxes assessed to Chevron.

Chevron had reported income and prepared the West Virginia Oil and Gas 

Producer/Operator Returns that included receipts from natural gas liquids that were used 

to value the subject wells for that tax year. The circuit court found that by challenging the 

assessment, in effect EQT sought to amend Chevron’s 2021 tax returns to remove income 

attributed to the sale of natural gas liquids. The circuit court concluded that only a taxpayer 

can challenge the taxes it owes, not a third party, and a third party does not become a party 

liable to the taxing authorities by virtue of a private contract. 

2 The BAA was a party to the litigation at the circuit court appellate level, although 

the Supreme Court of Appeals of West Virginia has since issued an opinion clarifying that 

the BAA is a “deliberative body” and is not a necessary party to an assessment appeal. 

Berkeley Cnty. Council v. Gov’t Props. Income Tr., LLC, 247 W. Va. 395, 405, 880 S.E.2d 

487, 497 (2022).
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The circuit court further found that West Virginia Code § 11-3-25 (2014)3 did not 

confer standing upon EQT, although EQT argued that it is an “aggrieved party” to the tax 

assessment pursuant to its contract with Chevron. West Virginia Code § 11-3-25(a) 

permits, in part, that:

Any person claiming to be aggrieved by any assessment in any land or 

personal property book of any county who shall have appeared and contested 

the valuation as provided in section twenty-four or twenty-four-a of this 

article. . . may, at any time up to thirty days after the . . . order of the Board 

of Assessment Appeals is served on the parties, apply for relief to the circuit 

court of the county in which the property books are made out[.] 

The circuit court’s order found that EQT is not an “aggrieved party” as contemplated 

under this statute or as discussed in Tug Valley Recovery Center, Inc. v. Mingo County 

Commission, 164 W. Va. 94, 109, 261 S.E.2d 165, 173 (1979). The circuit court interpreted 

Tug Valley to be a limited holding that only allowed non-property owner county residents 

to contest the property tax assessment of a large mineral owner that owned undervalued 

property because it could have resulted in discriminatory treatment to the residents as 

taxpayers and the loss of governmental services from a diminished tax base. Because the 

circuit court found that EQT was seeking a reassessment of what it believed was an 

overpayment of taxes, not an underassessment that could result in an injury to other 

members of the district, the circuit court found that Tug Valley did not establish that EQT 

was an “aggrieved party.” It is from that dismissal order that EQT now appeals.

Our standard of review of a circuit court’s order granting a motion to dismiss a 

complaint is de novo. Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 

194 W. Va. 770, 461 S.E.2d 516 (1995). Judicial review of a circuit court’s proceedings 

under West Virginia Code § 11-3-25 is also de novo. Musick v. Univ. Park at Evansdale, 

LLC, 241 W. Va. 194, 199, 820 S.E.2d 901, 906 (2018).

On appeal, EQT argues that the circuit court erred in determining that EQT is not a 

“person claiming to be aggrieved” under West Virginia Code § 11-3-25 and therefore did 

not have standing to challenge the 2021 tax assessment, pointing out that EQT owned the 

wells during the 2021 tax year, was responsible for the payment of the 2021 property taxes, 

and paid the 2021 property taxes. Second, EQT argues that the circuit court misread Tug 

Valley in determining that EQT, as the owner and taxpayer for tax year 2021, did not have 

standing to challenge the 2021 assessment. EQT argues that under both the statute and Tug 

Valley, it has standing to contest the assessment.

3 West Virginia Code § 11-3-25 was repealed as of July 1, 2022, but was effective 

at the time of the 2021 property tax assessment at issue in this appeal.
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The relevant statutory language from West Virginia Code § 11-3-25(a), which 

permits “any person claiming to be aggrieved” by any property assessment who has 

appeared to contest that valuation before the BAA to “apply for relief to the circuit court 

of the county in which the property books are made out” does not contain any statutory 

definitions for the phrase. It is undisputed, however, that EQT claimed to be aggrieved by 

the property tax assessment at issue herein, and appeared before the BAA in Marshall 

County to contest the assessment.

As our Supreme Court has cautioned, “we must remain mindful that the language 

of a statute is not to be construed in any mystical fashion. In the absence of any specific 

indication to the contrary, words used in a statute will be given their common, ordinary and 

accepted meaning.” Tug Valley, 164 W. Va. at 100, 261 S.E.2d at 169. See also Syl. Pt. 2, 

Fenton Art Glass Co. v. W. Virginia Off. of Ins. Comm’r, 222 W. Va. 420, 422, 664 S.E.2d 

761, 763 (2008); State v. Cole, 160 W. Va. 804, 806, 238 S.E.2d 849, 851 (1977). Our 

Supreme Court has also explicitly held that, “[t]he word ‘any,’ when used in a statute, 

should be construed to mean any.” Syl. Pt. 2, Thomas v. Firestone Tire and Rubber Co., 

164 W. Va. 763, 266 S.E.2d 905 (1980). Accordingly, the plain language of § 11-3-25(a) 

appears to permit EQT to “apply for relief to the circuit court” of Marshall County.

This conclusion is also supported by our Supreme Court of Appeals’ interpretation 

of this statutory language in Tug Valley. There, it was found that “[t]he question of who 

has standing to appeal an assessment under this statute boils down to the definition of the 

term ‘any person . . . aggrieved.’” Tug Valley, 164 W. Va. at 100, 261 S.E.2d at 169. 

Importantly, the Supreme Court stated, “[t]his statute does not say that one may appeal an 

assessment of their own property, but that Any person who is aggrieved by Any assessment 

shall have the right to appeal that assessment (if they have appeared and contested the 

valuation before the Board of [Assessment Appeals]).” Id., 164 W. Va. at 101, 261 S.E.2d 

at 170. Although the Tug Valley decision goes on to explain the application of the law to 

the particular facts of that case, the Supreme Court does not explicitly limit its holding to 

only those aggrieved persons with the same characteristics as the Tug Valley plaintiffs.

We find, therefore, that the circuit court below erred in its application of the plain 

language of West Virginia Code § 11-3-25 and was too narrow in its interpretation of Tug 

Valley when it found an exclusion that prevented EQT, as an aggrieved party that had 

appeared and contested a property tax valuation before the Marshall County BAA, from 

exercising its right to appeal in the Circuit Court of Marshall County. 

Accordingly, we reverse the November 15, 2022, order of the circuit court and 

remand for further proceedings consistent with this decision.

Reversed and Remanded.

ISSUED: December 15, 2023
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CONCURRED IN BY:

Chief Judge Daniel W. Greear

Judge Thomas E. Scarr

Judge Charles O. Lorensen