Skip to content Skip to navigation

Conservation Underground: Researchers Propose a Way to Block Subsurface Exploitation

Feb 23 2017

Housing development outside of Cheyenne, Wyoming

A housing development outside of Cheyenne, Wyoming.    Geoff McGhee, Bill Lane Center for the American West

By Felicity Barringer

For most of the last half-century, landowners in every state have been able to use conservation easements to protect their holdings from development in perpetuity. In keeping lands free of everything from homes to factories to airports, conservation easements help to preserve wildlife habitats and rural landscapes.

But the same easy conservation option is usually precluded when the subsurface mineral rights are owned by someone else. The legal term for this mixed ownership is “split estate;” it is a common occurrence in the mineral and energy-rich lands of the American West.

A new kind of easement might change the situation. A Stanford professor of Earth Sciences, Rob Jackson, teamed up with two law professors, James Salzman from the University of California, Los Angeles and Jessica Owley from the University of Buffalo, to propose conservation easements for subsurface areas.

“We propose a novel tool, the Mineral Estate Conservation Easement, to provide landowners with the ability to restrict hydraulic fracturing and other oil and gas subsurface activities in areas of particular social or ecological vulnerability.”

In a new paper published in the Environmental Law Reporter this month, the three suggest that such “mineral easements” might provide a tool to block hydraulic fracking and the oil and gas wells that have been sources of fear and opposition from New York to California.

The well bores drilled outward from these wellheads can reach for miles underground; their discharge, made up of polluted water and chemicals, can pose a risk to aquifers. In the paper they write, “In a few short years, hydraulic fracturing has transformed the oil and natural gas industries and changed the landscape of energy policy, while generating major conflicts over local land use decisions…”

“We propose a novel tool, the Mineral Estate Conservation Easement, to provide landowners with the ability to restrict hydraulic fracturing and other oil and gas subsurface activities in areas of particular social or ecological vulnerability.”

The idea has some conservation experts intrigued, others excited, and others skeptical.

“Yes, I like the idea,” said Rock RIngling, managing director of Montana Land Reliance, a conservancy group that controls more than 1 million acres of conservation easements. More than 50,000 of the easements include subsurface rights, he said, but he nonetheless was intrigued by a new tool to make subsurface conservation easier.

Philip Tabas, vice president and general counsel of The Nature Conservancy, perhaps the country’s best-known nonprofit focused on conserving land, said the proposal “is creative and we need more creativity in conservation.” But, he added, mineral rights are governed by a very particular body of law in most states, and he needs to find out how these laws intersect with the proposed easements.

In the West, a Majority of Mineral Rights Underlie Public Land

Conservation Easements Across the U.S.

Conservation easements of various kinds cover more than 22 million acres of land in the United States, according to the National Conservation Easement Database, a public-private partnership. Take a look at our interactive map of nearly every conservation easement, with details on over 130,000 sites.

View the map »

In the continental lands west of the 100th meridian, there is a vast expanse of land beneath which mineral rights are claimed. But the vast majority of this ownership is in the federal government’s hands; a smaller portion belongs to state governments. There are private holders of mineral rights, but the land that oil and gas companies might value is most often held by the federal or state government.

As the Environmental Law Reporter paper explains, in most places, there are well-established laws favoring the exploitation of mineral rights. When there is a conflict, these laws supersede the laws governing surface land.

That is the bad news. The good news, the three authors write, is that most state laws governing conservation easements require that they protect nearby waters — and these proposed easements would, arguably, protect underground aquifers from potential contamination of fracking debris.

Creating conservation easements requires, under state and federal laws, selling the easement to a government entity or a recognized land trust. As of last October, over 22 million acres of land has been preserved in 130,758 easements, according to the National Conservation Easement Database.

Building on this kind of easement with the new mineral estate easements has potential to preserve more acres both above and below ground. Still, some specialists in easement expansion are not sure how well it could work, in part because of existing legal obstacles.

Where Land Ownership is Only Half the Story

“If you purchase property in Montana (and many other areas in the Rocky Mountain West),” reads a pamphlet from the state’s BLM office, “you may not be getting ownership of as much of the property as you think you are.” In many western states, the “split estate” doctrine means that private landowners may not control the mineral rights underlying them — potentially leaving them powerless to stop mining and energy exploration in their backyard. The BLM estimates nearly 60 million acres of private land fall into this category, predominantly in the West.

Split Estate Mineral Rights by State, in Acres
Source: 2015 Public Lands Statistics, Bureau of Land Management    Geoff McGhee
 

Keep it in the Ground? — Problems Arise When Neighbors Share a Resource

Russ Shay, the director of public policy at the Land Trust Alliance, suggests a real potential barrier is the legal framework which, in many states, controls who can profit when valuable minerals are drawn from underground pools or veins. Often these pools underlie several different properties; the existing system requires that all owners be separately compensated based on their ownership share.

One party taking a conservation easement would not stop drilling, but would be cut out of the profits that are governing by “pooling” or “ponding” laws. As Mr. Shay said, “This is a conundrum. Everything around you is going to be dug up, are you committed to not getting any profit out of that? But for most landowners, the rancher or the farmer” unable to block the mining would be “better off taking the profit and moving to some place I can live in peace.”

“This is a conundrum. If everything around you is going to be dug up, are you committed to not getting any profit out of that?”
— Russ Shay, Land Trust Alliance
 

William T. Hutton, a lawyer with the San Francisco firm of Coblentz, Patch, Duffy & Bass who has worked for decades on land conservation issues, said, “In order to have the impact the proponents anticipate, you would have to get all of the owners aboard.” That, he said, “could be a matter of some difficulty.”

And Edward Thompson Jr., the California director of the American Farmland Trust , was concerned that with mineral easements, “it seems you’re trying to pound a round peg into a square hole.” Traditional easements, he said, “try to protect the natural features of the surface of the land.”

“The article has a pretty good basic analysis,” he said, agreeing that the authors’ suggestion that changing state law could help the new easements. Still, he said, in states with extensive mineral ownership, legislatures would be disinclined to curb mining.

Rob Jackson, the lead author of the paper, said of the critiques: “I’m not surprised by the strong opinions about our proposal, both positive and negative, because of the legal issues to be resolved. I hope some test cases arise quickly.”

 

 

Read Next in ...& the West

Conservation Easements Across the U.S.

Conservation easements of various kinds cover more than 22 million acres of land in the United States, according to the National Conservation Easement Database, a public-private partnership. Take a look at our interactive map of nearly every conservation easement, with details on over 130,000 sites.

 

Submit a Comment

We'd like to know what you think. We will not share your email address or add you to any lists. If you'd like to be notified about new blog posts and news from the Center, you can join our mailing list.

You will receive emails no more than once a week. We will not share your information.
By submitting this form, you accept the Mollom privacy policy.

 

...& the Best

Western Articles and Media Elsewhere
Compiled by Natasha Mmonatau

April 18, 2017

California Isn’t Accounting for this Major Emitter. Methane emissions from hydropower have evaded state emissions budgets for some time, despite the release of significant amounts of this potent greenhouse gas owing to plant decomposition in reservoirs and lakes. California’s failure to account methane emissions from hydropower presents a blind spot in the state’s fight against climate change. High Country News

NASA Is Digging in the Snow to Help the West Manage its Water. NASA’s latest earth explorations include the SnowEx project, an effort to figure out how much water is stored in the planet’s snow cover. Scientists measuring snowpack density in western Colorado hope to put together a remote modeling system devoted to taking continuous stock of earth’s water resources, with potentially far-reaching economic implications for water management. Five Thirty Eight

Court Rules California Climate Payments Aren’t Taxes. A recent court decision in California could help the state’s cap-and-trade program, which requires industry polluters to account for their greenhouse gas emission outputs and pay for or mitigate any excess. Several comapnies wanted the court to declare the cut-and-trade program a disguised tax. But the legal opposition included multiple stakeholders including the California Air Resources Board united to disprove the tax theory for pollution payments. A boost to cap-and-trade may aid in moving California forward on its climate goals. Climate Central

Native Americans Caught Salmon Here for Millenia. Now the World Is Hooked. Small-scale fisheries owned by Native Americans in Washington serve as an exercise in community building, strengthening local ties and prompting rapidly increasing profits for catches. Using commercial standard fishing methods, the Yakama tribe is bringing Native catches to wider global markets. Grist

The (Poi) Power of Hawaiian Food Sovereignty. Hawaiian farmers developing innovative agricultural methods and practices may be leading the fight for nutritional self-sufficiency in Hawaii, an island that currently imports the majority of its food. Growing taro, the root used to make a Hawaiian dish called Poi, allows a return traditional food systems and a path toward greater independence in the future. Sierra Club

Western Articles and Media Elsewhere
Compiled by Alan Propp

March 15, 2017

A U.S. Appeals Court this week upheld an Indian tribe’s right to the groundwater beneath its reservation. This decision, which has significant implications for the future of water management in the West and beyond, signals Native Americans' willingness to protect their water supplies using the courts. While the battle will likely continue in higher courts, the ruling remains a major victory. Circle of Blue

Ecologists are exploring radically new techniques to manage tree-covered land in the Sierras, as pressure on forest health increases from a number of directions. Researchers now endorse a “toolbox” approach incorporating resistance, resilience, and realignment to combat stressors from heat waves to insect plagues. This is proving to be a difficult change for forest managers using long-developed management schemes. Yale Environment 360

The Crescent Dunes solar thermal project is the largest energy station of its kind in the world. It delivers power to NVEnergy, which serves the majority of Nevada’s population. Large-scale solar thermal plants, whose association with harm to wildlife has made them controversial, nonetheless represent a massive step forward in renewable energy’s development in the west. Alec Ernest presents a documentary film showing the scale and challenges of Crescent Dunes. In related news, Nevada's 50-year-old Reid Gardner power plant officially stopped burning coal this week. KCET

Hear from western readers about some of their experiences in the American West. High Country News asked for uncomfortable truths, encounters, and revelations from readers in the West, and published a sampling of their responses. High Country News

While most people see California at the forefront of the fight against fossil fuel interests, “Big Oil” still holds a large sway in this state of progressive and environmental values. Both politically and economically, oil interests have a massive stake and wield a large influence in the California’s decisions, which may test the state’s role as a climate leader in the years to come. Reveal

Some energy billionaires are planning bold new clean energy initiatives in Western states. From California to Wyoming, the energy landscape is shifting, and Sammy Roth from the Desert Sun evaluates the costs and benefits of the coming changes. This podcast explores his story. Sea Change Radio

February 9, 2017

Rising temperatures in California could soon spur a shift in crops for Central Valley farmers. While rising winter temperatures could benefit some agricultural commodities, others (such as walnuts, cherries, and pistachios) will suffer. Within the next few years, farmers must either find technologies that allow these trees to flourish, or leave abandon them and turn to warmer-weather crops. Valley Public Radio via NPR

The energy mix in the West continues to shift towards sustainable sources – the opening of Tesla’s battery farm in Southern California could be followed by the closing of the West’s biggest coal plant in Arizona. The Aliso Canyon gas leak led Southern California Edison to search for more reliable energy sources, opening the door for lithium-ion battery storage provided by Tesla and others. Meanwhile, declining natural gas prices and rising costs for coal electricity production are making many coal plants — like the Navajo Generating Station — economically infeasible. The Guardian Grist Grand Canyon Trust

The expansion of predator populations is causing a kaleidoscope of reactions across various western states as locals struggle to balance conservation and ranching concerns. In Oregon and beyond, the recovery of wolves may mean that individuals (such as a high-profile wolf by the name of OR7) may lose their novelty, making them more expendable. Meanwhile, Colorado is cracking down on black bears and cougars in order to protect its thin mule deer population, an effort that has not been implemented without controversy. High Country News onEarth

California is increasingly turning to an unorthodox source for drinking water: recycled sewage water. Since 2014, the state has aggressively increased funding for wastewater treatment and recycling. Once produced largely for non-potable use – on landscaping, for instance – effluent is increasingly purified intensively and used for drinking water and aquifer replenishment. This technique is spreading despite the difficulty of the purification process. Undark

Biologists and fisheries managers in Oregon have begun using eDNA to find threatened species in river systems through water sampling. This novel technique uses highly sensitive water sampling techniques to find the DNA that endangered creatures shed from their skin, urine, and feces. With more refinement, the approach has the potential to revolutionize fisheries management, making it cheaper and easier to monitor species in waterways throughout the western United States. NPR

January 31, 2017

President Barack Obama is gone now, but what sort of mark did he leave on the West’s climate, energy, and lands? In the “West Obsessed” podcast, High Country News covers the wide-ranging and (for the most part) positive impacts that happened on his watch, including the development of renewable energy, the first far-reaching actions to address including the development of renewable energy, the first far-reaching actions to address climate change, and the last-minute designation of large federally protected conservation areas. High Country News

In the vein of the last administration’s conservation efforts, learn more about his recent expansion of Oregon’s Cascade-Siskiyou National Monument. This stunningly beautiful protected region contains one of the most ecologically rich areas in North America, with species ranging from northern spotted owls to rare butterflies, and remains an important area for biodiversity research. While contested by some, Cascade-Siskiyou’s expansion is hailed by many as a victory for the conservation of large, intact, and critical habitat areas in the United States. Undark

Stanford’s new data visualization project, called “Follow the Money,” allows users to track the destination counties for a variety of different environment-related funds. Find your county and see how much it has received through the years from the Land and Water Conservation Fund, the Forest Service Revenue, the Federal Mineral Leasing Act, and more. Or, choose a fund and track how its payments have changed through the years, such as the dramatic increase in mining and drilling funding for Utah and Colorado in the mi-90s. Stanford Spatial History Project | CESTA

The consequences of the Aliso Canyon gas leak in Southern California were far-reaching over the last two years. The leak emitted massive amounts of methane and toxic chemicals into the atmosphere for months before the SCGC was able to get it under control. This environmental and health disaster, essentially invisible to the naked eye, has united communities against the reopening of the facility and given a regional boost to a relatively new and under-tested form of energy technology: batteries. The New York Times

New collaborative research on the Yellowstone River reveals the complex consequences that human activities can have on the rivers in the region. The combined effects of these actions - which include diversion for irrigation, erosion control, and the placement of boulder breakwaters - weaken the river system and make it vulnerable to stressors like fish-killing parasites. Yale Environment 360

As California’s extended drought continues, tensions remain high over water rights and who is entitled to the usage of various water sources. The state has imposed increasingly strict consumption quotas, and has begun to turn more attention to the largest water users in the state. This article explores the developing energy efficiency technology and research efforts in the region, with a specific focus on the state’s economically critical and most extensive water consumption industry: agriculture. The Desert Sun