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 and Rebecca Nelson

Articles Worth Reading: Dec. 17, 2018

Pollution on the California-Mexico Border, Some Carried by the New River, flows though the region. Some of it wafts through the air that carries factory fumes over Mexico and Calexico, Some rises from fetid garbage dumps. It all does serious harm to the health of local residents. A series of articles show smokestacks, traffic exhaust, dust, and smoke from trash fires, often leave the cities blanketed in hazy air. The pollution is linked to high rates of respiratory illnesses and deaths. The Desert Sun

We Knew the California Snowpack Was Declining. Now We Know How Fast: 79 Percent by the century’s end. As it fades, much less snowmelt can be drawn on to fill huge reservoirs such as Shasta, Oroville and Folsom. All this as the state’s population and farm economy continue to grow. The new reality that will require fundamental changes in the way California and the federal government have operated the state’s water system for nearly 100 years. San Jose Mercury-News

In Sacramento, Two New Decisions on Dividing the Waters. In one, the state’s top water agency decides to send more water to Delta fish populations on the San Joaquin River, angering farmers and cities. In another, the governor defers to the federal government and makes more water available to farmers. Sacramento Bee
Sacramento Bee

A Federal Ultimatum Declared on a Colorado River drought contingency plan. Get it done by January 31, said the Bureau of Reclamation Representative told the seven states negotiating the plan — or we’ll do it for you. California and Arizona are the last states to fall into line. But this plan, when it is final, could be a bridge to another agreement to manage the water world of the Southwest as the climate changes and the water disappears. Also: how to think about the future. Denver Post Cronkite News John Fleck

Big Utilities Plan Power Shutoffs to Avoid Sparking Wildfires, while the experience of the Camp Fire indicates that small local power grids enhance the resilience of areas in the wildland-urban interface. Utility Drive

Should Washington State Breach Dams to Preserve Orcas? The decline of Puget Sound’s orca population has many probable causes: toxins in the water, noise from boats and lack of food. Chinook salmon are its primary food, and salmon runs are feeble, despite tens of millions spent by hydropower authorities to bolster salmon runs. As part of a $1 billion-plus save-the-orca effort, Washington Gov. Jay Inslee unveiled a $750,000 plan to investigate the impact should four Lower Snake River dams be removed. It drew criticism from the northwest’s congressional Republicans. Idaho Statesman

Articles Worth Reading: Dec. 4, 2018

There’s a Bullseye on the American West, When One Looks at Climate Change and its economic and ecological consequences, according to a recent federal report. The report emphasizes growing water scarcity, wildfires, sea-level rise, and health costs brought on by climate change. Tribal, local, and state governments are working on climate adaptation plans. High Country News Denver Post Arizona Daily Star

The Private Firefighter Industry Grows. In response to worsening fires across the West, demand has increased for private firefighter companies. But private firefighters are not an affordable option for many homeowners. Mountain West News Bureau/Elemental

A Sanitation Crisis at the Border. Water contaminated with sewage could have health impacts in communities along the U.S.-Mexico border, whose residents are advocating for water treatment plants and updates to infrastructure. Ticklish relations between the United States and Mexico complicate sewage management policies. NRDC

A Measure to Cut Back Wyoming’s Wilderness Study Areas Advances. The measure, sponsored by Rep. Liz Cheney, would release around 400,000 acres of federal wilderness study areas in Big Horn, Lincoln and Sweetwater counties to general management, eliminating special protections. Park County commissioners are hoping that the bill will be amended to also release the local McCullough Peaks and High Lakes wilderness study areas to less restrictive management. The Powell Tribune

Recycling Scandal Crosses State Lines. A group of Arizona residents are accused of stealing over $16.1 million from California’s beverage recycling program by bringing in thousands of bottles and cans from Arizona. The CalRecycle program gives California residents an opportunity to earn back a tax added to bottled goods by recycling their bottles and cans at special facilities. This is the first recycling scandal in California to cross state jurisdictions. Arizona Republic

Articles Worth Reading: Nov. 20, 2018

Raging Fires Made California’s Air 60 Times Dirtier than world health standards last week, and more than 10 times worse around the San Francisco Bay area, as smoke from the Camp Fire in Paradise sat on communities 200 miles away. Smoke, not flames, is the deadliest public health risk from wildfires. Bloomberg Grist

As Lake Mead’s Levels Drop, Can Seven States in the Colorado River Basin Agree on a drought contingency plan to share the predicted water shortage? A rebellion by two Arizona agencies may impel the six other states to make decisions on their own. Op-ed articles by the state’s governor and a former Interior Secretary scold the agencies for their intransigence. As Gov. Doug Ducey wrote, “The foundational purpose of a multi-state drought contingency plan is to transition to a drier future….However…demands for water and money to mitigate reductions are growing to insurmountable proportions.” Phoenix New Times Arizona Capitol Times Arizona Republic

Gray Wolves’ Protection Under the Endangered Species Act May Not Last, if a bill just passed by Congress becomes law. The measure ends federal protection from the wolves in the 48 contiguous states. In the Northwest, where wolves are considered endangered in the western two-thirds of Oregon and Washington, state agencies would take over. Environmental groups say the wolves’ recovery goals are not far off, but may not be reached if the federal government bows out. Oregon Public Broadcasting

With The New Approval of An Industrial Solar Facility in the California Desert, and the news that its electricity has already been sold, the state, which is already ahead of its legislated goals for renewable energy development, will give a big boost to the national boom in renewable energy — a national success that will eventually face strong competition from China. Clean Technica Solar Industry Magazine Solar Industry Magazine Time

Their Canadian Cousins Thrive, But the Orcas of Puget Sound Face An Existential Crisis. While they are the most studied whales in the world, they among the most endangered orcas. As the population of Canadian orcas has grown by 250 percent since 1974, and is at 309, the population of Puget Sound’s pods, now 74, has grown barely nine percent in the same period. Experts blame the impact of the expanding human and industrial presence in the orcas’ range. The three southern pods have not successfully reproduced in three years. Washington Gov. Jay Inslee has put together a task force on recovering the whales. Seattle Times

Articles Worth Reading: Nov. 7, 2018

Six Western States Have Voted on Contested Environmental Policies. Five of Them Failed. Some ballot initiatives gave midterm election voters a chance to support salmon populations in Alaska or to support a fee on carbon emissions or to oppose recent environmental rollbacks involving drilling. Oil, gas, and mining companies poured money in opposition to statewide ballot measures that could increase costs or diminish revenues. The story of the campaigns and the work of environmental groups ran before the election. The results came today, in places ranging from Colorado to Washington State to Alaska. Mother Jones Denver Post Montana Standard PV Magazine Seattle Times KTUU Anchorage

The Navajo Tribe’s Future Without Its Major Employer and With a New President. As the various financial schemes for prolonging the life of the Navajo Generating Station fell apart, tribal members who work there must choose between finding employment where the new owners assign them, or staying on the reservation until the plant closes a year from now, then having a small chance of any job that pays as well. Their decisions will be made against a new political backdrop, as Joseph Nez, at 43, was just elected the youngest Navajo president ever. ASU/Cronkite News Indian Z News

Rare Dinosaur Fossils Are Threatened by the reduction of Grand Staircase-Escalante National Monument. Vast areas of land that may contain important paleontological discoveries are now vulnerable to potential energy development. About 250,000 acres of land with a high potential for fossils are being considered for mineral development. Salt Lake Tribune

A Water Reckoning in Colorado. Farming communities in the North Fork Valley of Colorado are water-rich in an era of increasing water scarcity. Farmers continue to use high volumes of water for irrigation. However, with climate change, the community will have to change outdated and inefficient systems in order to share water more cooperatively. High Country News

Indigenous Food Sovereignty in British Columbia. Activist Jessie Housty, a member of the Haíłzaqv nation, is educating young people in her community about their traditional food sources and culture. Her efforts are part of a larger movement to address food insecurity and malnutrition in indigenous communities through providing access to cultural foods. Civil Eats

Graphics & the West

 

Recent Center News

Jan 15 2019 | ... & the West Blog
Unsold beans pile up in the Northwest; Spokane grapples with a toxic legacy; native treaties clash with Wyoming hunting laws; Phoenix plans for more heat; and kids serve on snowflake watch – some of this week’s notable environmental stories.
Jan 10 2019 | Stanford Daily | Topics of the West
“Domestic rural communities are therefore underrepresented at Stanford by a factor of four. And we know that about five percent of Stanford’s undergraduate alumni live in domestic rural places,” writes Thomas Schnaubelt of the Haas Center for Public Service.
Dec 27 2018 | Center News
Together with Stanford Athletics and the West family, we are pleased to announce the successful creation of an endowed memorial fund to permanently commemorate Heather West’s love of the American West.