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, Sierra Garcia and Danielle Nguyen

Articles Worth Reading: September 9, 2019

The Destructive ‘Blob’ of Warm Pacific Water May Be Coming Back if warming surface waters are not scattered by winds over the next few months, federal scientists say. The National Oceanic and Atmospheric Administration reports the current Alaska-to-California swath of strikingly warm water closely resembles its predecessor. The ‘Blob’ led to the deaths of millions of sea lions and sea birds five years ago, and was associated with the sharp decline in salmon runs. Seattle Times

Administration Targets California’s Authority to Set Standards for Auto Emissions, while the Justice Department opens an antitrust investigation into four automakers who had made a pact with the state about the pollution limits that they would meet in years to come. The four automakers, Ford, Honda, Volkswagen and BMW, earlier this summer said they would follow stricter emission standards than those set by the Trump administration. The administration is opening the antitrust investigation while the Transportation Department and the Environmental Protection Agency both are telling California it lacks authority to regulate greenhouse-gas emissions. The state has had independent authority to regulate auto emissions for more than four decades. Politico

Utah Trees On the Chopping Block The Bureau of Land Management is working with heavy earth-moving equipment to wrest knots of juniper and tall pinyon pines from the landsape around the Grand Staircase-Escalante National Monument. The stated purpose is to improve habitat for sage grouse and allow the growth of fodder for cattle and deer – prized targets for hunters. But the area of slightly more than 1,000 square miles where the activity is set to place has been the site of significant archaeological and cultural finds. Less than 10 percent of the ground has been surveyed, and undiscovered artifacts could be endangered by the activity. Also, the use of heavy equipment in these delicate landscapes can lead to the incursion of invasive species. National Geographic

Changing Wyoming’s Economics As Its Superpower, Coal, Crumbles A decade ago, the state of Wyoming collected $500 million more from tax and related revenues on coal extraction than it does today. Mines are shutting, wrenching the economies of counties that depended on them. Two reporters worked to get under the skin of what these developments – and the way coal is losing out to competitors like natural gas and renewables – mean for the Jim Bridger mine in southwestern Wyoming. A seven-part package called “Powering Down” looks at coal as both a cultural touchstone and an economic driver, and contemplates a future when the mineral superpower has no more strength. Wyofile

Could a New ‘Grand Bargain’ on the Colorado River Gain Traction? The law of the river has tended to give the lower basin states of the Colorado River watershed – like California and Arizona – the right to call on the upper basin states, like Colorado, Utah to ensure they get their share of water, as allocated in a 1922 compact. But that compact was based on overgenerous assumptions about the river’s total flow. And the severe drought of recent years has reduced the river’s flows – never as big as once believed – by about six percent. There is talk, but not yet action, on creating a “grand bargain” that would take away states’ rights to demand their 1922 share, while ensuring that they would maintain access to water for crucial needs. The idea, which makes clear that the river’s flow is 2.5 million acre-feet below the 15 million acre-feet calculated in 1922, is enshrined in a paper circulated at a University of Colorado forum this summer. The question now is whether it will gain traction. Denver Post

What’s In A Name? The landscapes of the West have been called by many names, as different civilizations passed through. Now the names given in the last 200 years by western Europeans are getting another look. Davis Mountain in Nevada’s Great Basin National Park is getting a new name – it was named for Jefferson Davis in 1855, before the southern states seceded and he became the president of a rebellious slave-owning confederation. As of last month, it is called Doso Doyabi, or “white mountain” in Shoshoni. A series of similar naming questions are popping up from Washington – should Mt. Rainier bear the name of a British officer? – to Wyoming to Alaska. A look at how the people of the 21st century are reconsidering the names of the 19th. National Parks Magazine

Articles Worth Reading: August 26, 2019

Many of The West's Estuaries Have Vanished, replaced with farmland and cities, leaving only 15 percent of the original wetlands intact. Although wetland destruction has been rampant across the United States for centuries, the recent study is the first to estimate the full scope of the lost wetlands that once existed where much of Los Angeles county, the Puget Sound’s northern embankment, and the area near Tillamook Bay where dairy cows stand today. Wetlands shield coastal communities from sea-level rise and extreme storms; researchers emphasize that intact wetlands will be the best protectors for coastal communities, making them the least likely to vanish under rising seas. Oregon Public Broadcasting

‘Snow Droughts’ Are Coming For The American West more often because of climate change. The new research estimates that the likelihood of an intense four-year drought like the one California faced from 2012 to 2016 will increase a hundredfold by the second half of this century. The forecast is disastrous for the region’s multi-billion dollar ski resort industry, which will also face peak snowpack shifting to before the spring break height of the season. National Geographic

Federal Scientists Produced A Report Showing Water Diversions Would be a Critical Blow to endangered winter-run Chinook salmon in California and could cost struggling orca whales offshore their food supply. Immediately, other federal officials were dispatched to vet, and possibly revise, it. Just two days passed before fisheries and water officials got an e-mail telling them “fresh eyes” would examine the data for the next two months. Environmental groups have called foul. Sacramento Bee

What Happens When Public Lands Become Tribal Lands Again? A reporter investigates after a multi-decadal legal battle, only in this case, within months of the transfer, a fire burned a large chunk of the land. The Cow Creek Band of Umpqua Tribe of Indians had some of their traditional lands in southwest Oregon restored in 2018, after 165 years of illegal federal use in violation of a treaty signed with the tribe. The issue of land ownership pitted some environmentalists against tribal leaders, who proposed controlled burns and limited lumber extraction on their land. The recent wildfire ravaged more than a fifth of the land recently transferred back to the tribe. High Country News

A French Saddlemaker Embraces the American West by learning, perfecting, and now teaching the art of traditional western leathercraft. Pedro Pedrini’s passion for the American West and classic western saddles drove him from the Alps in his native France to Oregon, California, and Canada. After four decades of practicing his chosen craft in the United States, he is seen as a consummate artisan. In addition to crafting saddles, he now teaches classes in northern California on leather tooling and saddle creation, hoping to ensure that the knowledge and techniques of western saddle-craft will live on. East Oregonian

The World’s Largest Wildlife Bridge Will Allow Mountain Lions – and other species – to regain most of their old range in the Santa Monica Mountains northwest of Los Angeles. The Guardian

Articles Worth Reading: August 12, 2019

The Desert Gets A Biocrust Skin Graft in an attempt to reverse the severe erosion, amounting to up to 8,900 pounds of annual soil loss per acre in the Southwest. The thin but hardy film of microbes helps maintain desert ecosystems, ensures healthier air and water, and protects archeological resources. But it can take anywhere from 20 to 2,000 years to regrow once destroyed by oil and gas development or recreational land use. Ecologists who have grown successful artificial biocrusts in labs and greenhouses are now struggling to transplant the homegrown biocrusts onto the desert. These efforts have sparked internal disagreement between land managers and scientists about whether to continue to replace biocrust, or focus time and money on preserving still-intact desert areas instead. High Country News

A Clean Energy Breakthrough Could Be Buried Deep Beneath Rural Utah in a subterranean salt dome, part of which is across the street from an existing transmission line to Los Angeles County. The vast network of salt caverns could act as an enormous battery, using a decades-old technique to store large amounts of energy — in this case,renewable energy. With the neighboring coal plant scheduled to close in 2025, the salt dome is in a perfect position to become a major component of Los Angeles County’s commitment to be 100 percent renewable by 2045. Los Angeles Times

Mountain Goat Eradication Is A High-Flying Balancing Act In Olympic National Park. Helicopter teams are charged with capturing, hog tying, and safely relocating these tenacious invasive animals. The elaborate airborne relocation efforts aim to eradicate all mountain goats from the park, where they have wreaked havoc on the ecosystem. They are being moved to their natural habitat of the North Cascades Range, where the native mountain goat population is in decline. The project transported 115 goats last year alone, and so far, tracking devices show that the transported goats are surviving as well as their Cascadian-born kin. The goats that altogether evade their captors, or “muggers,” will eventually be killed to rid Olympic National Park of mountain goats for good. High Country News

This Remote Corner of Nevada Is One Of The Darkest Places in The World, and is now also the newest and largest Dark Sky Sanctuary in the United States. Like all Dark Sky Sanctuaries, the 100,000-acre sanctuary at Massacre Rim lacks legal protection. The International Dark Sky Association bestowed the title on Massacre Rim, recognizing it as one of the best spots in the world to view a night sky unobstructed by light pollution. The area is more than an hour’s drive from the nearest settlement and over four hours from the nearest city; its extreme isolation allows visitors to see the Milky Way shine so brightly that it casts shadows. The audio segment of this story is under four minutes and accompanied by a short written article. NPR

The Pacific Coast Salmon That Are Most Threatened by Climate Change travel furthest to spawn, new research shows. Dams for flood control and irrigation, water diversions and logging have pushed more than 50 runs of salmonids onto lists of endangered and threatened species; climate change may be the coup de grace for some. Inland waterways far from the coast, where some salmon spawn, are getting warmer, and may get too warm for young salmon to survive. Chinook salmon at the greatest risk in three places: California's Central Valley and the Columbia and Willamette River basins. Also at risk are coho salmon in Northern California and Oregon and sockeye salmon from Idaho’s Snake River basin. Inside Climate News

Articles Worth Reading: July 30, 2019

Megadroughts Could Return to Southwestern U.S. on a scale not seen for half a millennium thanks to climate change. A new study reveals that the region can expect atmospheric conditions similar to those that caused decades-long ‘megadroughts’ in the middle ages, which likely destroyed the thriving Chocan civilization. A slight global cooling around 1600 halted the megadroughts, but with current global climate change, experts fear a return of extreme dryness to the Southwest. National Geographic

The Ute Mountain Ute Tribe Goes Solar in a bid for energy independence, job creation, and environmental stewardship. With more than half a million acres of land and only 2,000 residents, the Ute Mountain Ute Tribe hopes to point the way for other tribes with vast tracts of flat, sunbaked land to develop and export solar energy. By some estimates, solar energy on tribal lands in the lower 48 states alone would exceed by fourfold the amount needed to power the entire country. High Country News

Coalition Urges Senators to Back Herd Fertility Curbs for Wild Horses to rein in their extreme overpopulation and resultant environmental damage from large herds trampling sensitive rangeland. The contentious issue has brought together unlikely allies, uniting the ASPCA, the National Cattlemen’s Beef Association, and the Public Land Trust. All are pushing for a plan that would reduce the wild horse population by more than 60 percent in a decade – without euthanasia. The visceral public opposition to killing the classic western icons makes a plan based on intensive fertility control alone likelier to succeed in Congress. E & E News

Feds Look Again at Reintroducing Grizzly Bears to the North Cascades, an ecological boon that would bolster the top predator’s current estimated population of 10 bears within the North Cascades. The National Park Service and Fish and U.S. Fish and Wildlife Service reopened the public comment period last week, a decision conservationists celebrate and ranchers bemoan. Former Secretary of the Interior Ryan Zinke surprised stakeholders last year by signaling the federal government’s support for moving forward a reintroduction scheme. The Seattle Times

A New Yorker Describes Moving to the San Luis Valley in Southern Colorado, where people live with pioneering self-sufficiency and isolation. The valley’s several hundred residents live on some of the cheapest and most punishing land in the country, with minus 40-degree temperatures in winter and and no trees for lumber or protection. The profile showcases a lifestyle remarkably similar to nineteenth century homesteaders, and examines what drives broadly diverse people to live on The Last Frontier. Harpers

Articles Worth Reading: July 15, 2019

Phoenix Tries To Reverse Its 'Silent Storm' Of Heat Deaths, which rose to 155 people last year and will only continue to climb with global climate change. The city, which now experiences at least 100 days over 100 degrees each year, plans to redesign its layout to increase shade and create more aggressive outreach programs to prevent heat-related deaths. It hopes to become a leader and a model for other cities struggling with rising average temperatures and health challenges. NPR

California Lawmakers Approve Legislation For $21 Billion Wildfire Fund to help public utilities pay out homeowners in wildfires connected to the power providers. The new legislation aims to stabilize fears that wildfire damage claims could permanently cripple California utilities, making them a risky investment vehicle. Pacific Gas & Electric, northern California’s major utility, filed for bankruptcy after its equipment was blamed for igniting some of the worst wildfires ever recorded in California last year. Reuters

Renegotiating The Columbia River Treaty Six Decades Later will be a very different process from the original negotiations between Canada and the United States. The treaty governs management of the Columbia River watershed, a region about the size of France; parts of it are set to expire in 2024. The renegotiations will retain the original treaty’s focus on coordinated flood control and energy security across the vast region, but will add environmental concerns as a third pillar of managing the river. The new negotiations will also include First Nations and other native representatives who were entirely excluded from the original treaty negotiations. High Country News

A 700-Mile Solo Float On The Green River Led to a Comprehensive New Book on western water distribution and policy analysis, as described in an interview with the author Heather Hansman. The environmental journalist and rafter intersperses her policy research and stakeholder interviews with her personal experience navigating the major river through Wyoming, Colorado, and Utah. This podcast episode of the “Go West, Young Podcast” is 25 minutes long; this interview begins at 4:44. Center for Western Priorities

‘Goats Are the Best Tool’ for Cheap, Chemical-Free Fire Prevention – and demand for herds-for-hire is exploding in the western US as wildfire season looms. Prolific vegetation growth from heavy winter rains combined with extreme wildfires in recent years have towns, cities, and private owners across the west eager to clear out potential wildfire fodder. Goats are a cheap, efficient, and hungry solution, and herds are hard at work across the western states. The Guardian

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

Sep 18 2019 | ... & the West Blog
Updated | As was true a half century ago, forces in Washington, D.C. want to loosen emission requirements and strip California of its ability to impose tough standards for vehicle emissions, and once again, California officials are fighting back.
Sep 11 2019 | ... & the West Blog
As field hands rethink traveling to the U.S., some farmers have been forced to watch their produce rot in the fields. Many others are cutting back acreage.
Sep 9 2019 | ... & the West Blog, ... & the Best | Stories Recommended by the ‘... & the West’ Blog
Pacific water temperatures indicate that fish-killing warm water nicknamed ‘The Blob’ may soon be back; Utah trees going under the axe to improve sage-grouse habitat and cattle ranching; a deep look at the economic future of eastern Wyoming from the fading Jim Bridger mine; renaming mountains in Nevada and Washington; and more recent environmental news from around the West.