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.

 

...& the Best

Western Articles and Media Elsewhere
Compiled by Felicity Barringer, Francisco L. Nodarse, Devon Burger, and Madison Pobis

Articles Worth Reading: August 3, 2020

In Reversal, Army Corps Determines Alaska’s Pebble Mine Poses No Serious Threat to the region’s valuable sockeye salmon population. The Corps’ ruling overturned a 2014 finding by the Obama Administration. The proposed mile-square mine, 200 miles southwest of Anchorage, is poised to unearth one of the richest deposits of copper, gold and other valuable metals in the world. It pits two of the state’s most important industries, mining and fishing, against each other. Washington Post The New York Times

Land Subsidence Means Chunks of California’s Coast Are Vanishing, a new ASU study reveals. The sinking hotspots are found in San Diego, Los Angeles, Santa Cruz, and San Francisco where the population of millions will be at greater flood risk. “We have ushered in a new era of coastal mapping at greater than 1,000 fold higher detail and resolution than ever before,” said Manoochehr Shirzaei, a co-author of the study. “The unprecedented detail and sub-millimeter accuracy resolved in our vertical land motion dataset can transform the understanding of natural and anthropogenic changes….” Earth.com

Pairing Landowners and Land Management Agencies and Nonprofits has allowed Montana’s Blackfoot Challenge to develop a more resilient landscape and rural community. Its programs include prescribed burns, predator deterrence, and drought-sharing agreements. Bitterroot

California Farmworkers Are Paying High Price as COVID-19 Surges, worrying that as the pandemic surges in agricultural hubs, it could catch and kill them. Or it could kill their jobs. Protections for farmworkers, like masks, hand sanitizer and social distancing, need to be made mandatory, advocates said, and longstanding conditions that farmworkers have endured, such as crowded buses to and from work, or overcrowded housing, need to be addressed. InsideClimate News

Decline in Western Bumblebee Populations Gets More Dramatic, a federal review reveals. In the last two decades, the bee population has dropped by as much as 93% in the last two decades. The U.S. Fish and Wildlife Service is now deciding whether the insects need protection under the Endangered Species Act. The bees are important pollinators and many factors contribute to their decline: pesticides, habitat fragmentation, a warming climate, pathogens and agricultural chemicals. E&E News

The Fight for Clean Water in California’s Central Valley Is a Slog, as clean water is unavailable for hundreds of thousands of Californians in the state’s agricultural heartland. Tooleville, an unincorporated community of 80 homes at the southern end of the Central Valley, is trying to consolidate with a larger and better-resourced neighboring community.. “It’s very, very, very hard,” Yolanda Cuevas said of worries about her children and grandchildren’s exposure to contaminated water. Yale Environment 360

Murder Hornets: What do We Need to Worry About? The arrival of the Asian Giant Hornet in the western U.S. has researchers anxiously looking for ways to control the insect with the terrifying sting, which can pierce the protective clothing of even professional beekeepers. How many are there and where could they spread? A podcast on those questions by the WGA. Western Governors Association NPR

Santa Fe’s Indian Market Goes Virtual This Month, as more than 400 artists must find a new way to sell their work. On Saturday, Aug.1, the first Virtual Santa Fe Indian Market opened for business for the rest of the month. Lovers of Native art can shop for jewelry, dolls, textiles, pottery, clothing, baskets and much more at the SWAIA website, though August 31. Native News Online

Articles Worth Reading: July 21, 2020

Government Throws Curveball at Klamath Dam Removal Efforts. The long-range plan to take down four hydroelectric dams on the Klamath River, which flows between Oregon and California, seemed to be headed for conclusion. Then federal regulators refused to let the dams’ owner, PacifiCorp, sever its connections to the project, which it now owns. But energy regulators ruled that while the company can transfer its license, it must remain a co-licensee, potentially leaving it with unexpected liabilities beyond those it has already assumed. The decision throws the idea of recovering Klamath salmon populations further in doubt. Associated Press

Dramatic Increase Coming in California Weather Extremes as climate warming intensifies the cyclical oscillation of air systems, a phenomenon that influences everything from cyclones in the Indian Ocean to drought in the southwest. This finding from a University of California, Davis researcher suggests that the West will experience greater month-to-month fluctuations in extremely dry and wet weather. UC Davis

A Rabbit Plague Is Hitting the Southwest, bringing a mortality rate of up to 70 percent to populations of jackrabbits, hares and related species, including the rare pika. Rabbit hemorrhagic disease causes fevers, bloody noses and lethargy in rabbits, hares and other similar species, who often die of internal bleeding or liver failure. It came from China and Europe and infected domestic rabbits two years ago, but is now spreading in the wild. “The virus is in a pretty vast area, and we don’t have any tools to use to mitigate the spread or stop it once it’s out in free-ranging populations,” said a U.S. Geological Survey expert. The Guardian

Effort to Block the California-Quebec Climate Deal Fails, as a federal court finds the pact on greenhouse-gas emissions doesn’t usurp federal foreign-policy prerogatives. The cap-and-trade program at the heart of California’s fight against climate change could have been weakened if the Trump administration challenge had been upheld. Bloomberg

In Utah, a Debate Simmers Over Estonian Radioactive Waste, which could be reprocessed at a mill next door to the Ute Mountain Ute reservation, the only operational uranium mill in the United States. State officials must approve an importation license. Tribal officials fear this waste transfer could become the first of many to the White Mesa Mill in San Juan County, in southeastern Utah. The tribe says the mill was designed for a different function and is 20 years past its original planned lifespan. Reuters

Yellowstone’s Grizzly Bears Won’t Lose Federal Protections, thanks to ruling in a Montana state court that has been upheld by federal appeals judges. A 2017 federal decision stripping the bears of threatened status under the endangered species act could have paved the way for state-planned hunts Bozeman Daily Chronicle

Birds, Like Buildings, Can Have Confederate Names. One is the McCown’s longspur, a sparrow-like bird that summers in the Great Plains and winters in the southwest. John Porter McCown, its namesake, helped forcibly relocate Native Americans in the 1840s and served as a Confederate general during the Civil War. “Naming and language have power. The way that you use language tells people whether they belong or not,” said Earyn McGee, a University of Arizona doctoral candidate and organizer an online campaign to increase visibility of Black birders. The American Ornithological Society had balked at a name change; it is now rethinking that decision. Undark

Why Is the West Running Out of Water? A crisp and succinct video history of the series of poor decisions that have left the region looking at a parched future. Some 40 million people now depend on the Colorado River, which will be increasingly unable to provide water to those that need it. Cheddar

Articles Worth Reading: July 7, 2020

Four Years After the Standing Rock Sioux Tribe Sued to Block the Dakota Access Pipeline, and about four months after a federal district judge said the environmental assessment used to grant a permit was insufficient, the $3.8 billion pipeline is ordered to shut until a new environmental impact statement is finished. The pipeline had carried up to 570,000 barrels of Bakken Shale oil out of North Dakota daily before the pandemic. The U.S. District Court Judge James Boasberg, who revoked the Army Corps of Engineers’ permit allowing the pipeline to operate, is known for writing opinions featuring good humor and cultural savvy. Bismarck Tribune E&E Daily

Energy Department Approves First West Coast Liquefied Natural Gas Terminal at Coos Bay, Oregon. The Jordan Cove terminal, strongly supported by natural gas companies in Colorado and Utah that seek easy access to Asian markets, was first boosted in March when the Federal Energy Regulatory Commission authorized operations. DoE approval means the project can export as much as 1.06 billion cubic feet of LNG daily. A lawsuit seeking reversal of the FERC approval is pending. E&E DAILY

Images of Walls of Dust Headed for Phoenix Have Become a Summer Staple for a reason: researchers determined that these haboobs doubled in number between the 1990s and 2000s. Less often pictured are the likely impact: hospitals report a 4.8 percent increase in intensive care admissions on dust-storm days; the increased in respiratory admissions tops nine percent the next day. Bloomberg

Rio Grande Flow Levels Sink to Historic Lows in Albuquerque as rainless days force the release of water held in reserve. That supply may run out by mid-July, forcing difficult decisions over how existing groundwater supplies will be apportioned. John Fleck/Inkstain

PG&E Exits Bankruptcy With a New Board and a Lot of Work to Do as Wildfire Danger Proliferates PG&E filed for bankruptcy in January 2019, facing liabilities from multiple catastrophic wildfires that killed more than 100 people in northern California after they were sparked by its power lines. The company’s $25.5 billion payout to victims, insurance companies, and local governments. Leaving bankruptcy now means PG&E can take part in a $21 billion wildfire insurance fund. Utility Dive

The Border Wall Will Not Cross the Cocopah Reservation in the Colorado River Delta. The original plan had included this seven-mile stretch east of the Colorado, but the money to pay for it was cancelled by Trump Administration lawyers in May after the Sierra Club and other groups sued to block that section of the wall. ASU/Cronkite News

The White-Throated Sparrows’ New Song Tops the Charts From British Columbia to Manitoba, avian scientists find. It’s taken about two decades for the new song, ending in a doublet of repeated tones, to be picked up other sparrows further East. Now the conversion from the old song -- ending in a triplet -- has become evident across most of Canada, starting in the far West. The scientist who discovered the change reports “White-throated sparrows have this classic song that's supposed to sound like it goes, ‘Oh, my sweet Canada, Canada, Canada….And our birds sound like they're going, ‘Oh, my sweet Cana– Cana– Cana– Canada.’” National Geographic

Articles Worth Reading: June 24, 2020

Legislators United Around Sweeping Plans to Help Public Lands as Democrats and Republicans in large numbers voted to approve the measure. It does everything from shoring up the major federal conservation fund to putting billions aside to maintain and improve national parks, which have long been neglected. Two western Republican senators, Cory Gardner of Colorado and Steve Daines of Montana, were seen as major political beneficiaries of the legislation. San Jose Mercury News   CNN

Black Americans Account For Just Two Percent of National Park Visitors, and a Black writer who is immersed in America’s wild places believes “the great outdoor in the U.S. has never truly been a welcoming place for people of color.” Until the end of World War II, Jim Crow laws were in place in most parks; Black tourists once depended on The Negro Motorist Green Book for information on facilities near parks that served Black clientele. Now a digital version of the Green Book is being written, and hope is rising that people who felt excluded from the outdoors will now embrace it. National Geographic

Wave of Real Estate Sales in the Mountain West As City Dwellers seem to be fleeing the crowding in the midst of the pandemic. A surge of out-of-staters are buying homes in Montana, Wyoming and other parts of the Mountain West, according to real estate agents. Boise State Public Radio

Should We Use a New Word for What the Decline in Colorado River Flows Means? Scientists have decided the word drought doesn’t cut it anymore. Researchers covering the climate in the river basin argue that a drought is temporary, and a word like “aridification” would describe something permanent. The Revelator

By 2016 Coal Production in Wyoming Was Half Its 2008 Levels. The Pandemic Changed That Trend– For the Worse. Rather than moving away from coal as an economic base on a glidepath to a new economy over a deacde, coal communities could see their economies disappear much faster. “Basically the [Wyoming revenue] trend that’s happened here is a vertical-downward; there’s no slope, it’s just straight down,” said University of Wyoming energy economist Robert Godby. Wyofile

Texas Deciding Whether to Ban Flaring Natural Gas or simply to regulate it. The State’s Railroad Commission has authority over the oil and gas industry, and can use existing state laws to control flaring – the laws prohibit a “waste of natural resources.” But the agency issued 7,000 exceptions last year, up 27percent from the year before. Two new studies support a ban on routine flaring. E&E News

Want to Know Where Fish-ish Meals on Your Plate Will Be Coming From in coming decades? Check out this lab at the University of California Berkeley, which specializes in alt-meat. Hakai

Articles Worth Reading: June 8, 2020

Record-Setting Floods Have Re-ignited the Debate Over Damming Washington’s Chehalis River. Most proposals recommend the creation of a seasonal reservoir to moderate water flows, but they face criticism from environmental groups who argue that obstructing the waterway would hinder salmon breeding. Crosscut

New Revelations in the Enduring Mystery of Mount St. Helens’ Geology could help scientists better predict future eruptions. The volcano, known for its devastating 1980 eruption, has long puzzled vulcanologists due to its unique location away from large magma deposits. National Geographic

Has Legislative Inaction Left Oregon Vulnerable to the Coming Wildfire Season? Experts suggest drought conditions will exacerbate the fire risk, but efforts to address budget difficulties — the state faces over $80 million of outstanding fire-related debt — fell through after Republican lawmakers walked out of a session that pinned the worsening fire situation on climate change. The Oregonian

Federal Judges Across the West Set Back Trump’s Energy Agenda, delivering a series of rulings that cancelled oil and gas leases and required more thorough environmental analyses for such projects. Though energy industry allies have denounced the decisions as judicial activism, environmentalists suggest that the rulings will do little to deter the expansion of drilling projects in the region. Associated Press

More Than 100 Alaskan Communities Lost Access to Essential Deliveries when Rvan Air, the state’s largest regional airline, filed for bankruptcy last month. The announcement, delivered mere hours before service ended, left tribal coordinators scrambling to arrange alternate ways to supply their communities. Indian Country News

‘Glacier Mice’ Have Puzzled Geologists for Decades by Their Herd-like Movements. NPR’s Short Wave team spoke to experts to learn more about a strange phenomenon – the small balls of moss that dot glacial landscapes. NPR

Articles Worth Reading: May 26, 2020

Glacial Retreat in Alaska’s Prince William Sound Could Cause a Megatsunami, climate scientists warned last week. The glacier, subject to extensive calving thanks to climate change, could dislodge a massive slope of rock and dirt, spawning a wave hundreds of feet high that would destroy much of the heavily-touristed bay. Researchers have urged local authorities to set up monitoring to address the growing threat. The New York Times

Bureaucratic Mismanagement is Undermining Wildfire Preparedness in the face of the coronavirus epidemic. Wildland firefighting crews have received little guidance from their parent organizations, and are struggling to respond to the changing public health situation, raising alarm among firefighters and politicians alike. Grist

Questions About The BLM’s Billion-Dollar Plan to Curb Wild Horse Populations and protect rangeland. It is designed to promote sustainable grazing and envisions the capture of hundreds of thousands of horses over two decades. Some groups remain skeptical, however, arguing that the plan aims to assist cattle ranchers without establishing clear protections for wild horse populations. The Salt Lake Tribune

The Grand Canyon’s Inter-Tribal Working Group Renovated the Park’s Interpretive Sites as part of a broader effort to include indigenous histories in park curricula. Renovations at the Hopi Tower, aimed at preserving Hopi culture, could usher in a more harmonious working relationship between the Park Service and local groups. National Parks Conservation Association

A Lawsuit Brought Against the Federal Government by the Yurok Tribe Was Blocked when a federal court, which affirmed the government's decision to limit water flows on the Klamath River. Attorneys representing the Yurok had argued that diminished water flows would threaten Coho Salmon habitat near the river’s mouth. The ruling, a blow to Yurok efforts to preserve traditional salmon fishing, comes in the wake of mass fish die-offs due to bacterial infections. E&E News

The Hmong Flower Farmers of Seattle Adapt to Coronavirus Closures A long-time staple of the iconic Pike Place Market have drawn strength from their refugee experiences. The Seattle Times

Graphics & the West

Where California Grows Its Food

See the most detailed survey ever done of crops and land use in California. It covers nine million acres of land devoted to grapes, alfalfa, cotton, plums, you name it – food for people and animals all over the world. View map »

California's Changing Energy Mix

A look at the energy sources California utilities have used gives us insights into the state’s progress in decarbonizing its electricity supply. In 2015, 35% of total electricity generation (in-state generation plus imported electricity) came from zero-greenhouse-gas sources, which include solar, wind, hydropower, and nuclear. View Graphic »

U.S. Conservation Easements

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 map »

 

Recent Center News

Aug 10 2020 | Out West student blog
Virtual programming has made it possible for the Natural History Institute to share its work and events with a far greater, international audience.
Aug 7 2020 | Out West student blog
Zack Boyd is laying groundwork for future projects at the Henry's Fork Foundation.
Aug 6 2020 | Center News, Happenings
A Q&A with Tom DeMund on the 7th edition of his Feather River Country hiking book