Conservation Underground: Researchers Propose a Way to Block Subsurface Exploitation

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.

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.

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.”

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.”