Are Mineral Rights Exclusive From Neighboring Property Owner Concerns?”

In defense of their homes can fracking ban supporters resurrect an argument published over two centuries ago by one of our most inspiring and prolific writers?


There is an assertion by pro-frackers that tends to put some of us on the defensive in places like my hometown of Denton, Texas.  Denton is one of several cities who oppose gas and oil drilling in close proximity to our homes, school and parks, where we raise our families.

Some pro-frackers invoke their right as property owners to exploit the minerals that sits beneath their land.  It proves difficult to challenge because it is framed in today’s “free market” gospel which many Americans buy into too easily.  But is the presumption a valid one?

Texas is one of about seven states that have what’s called  “split estate” system.  This is where the surface property rights are actually separate from the mineral rights that sit below that property and where “surface rights are subservient to mineral rights.”  As I understand it, unless mineral rights are included in your property deed, they are not something you can exploit.

In all likelihood the government, be it federal or state, holds the authority to extract minerals and energy resources from below surface property for the purpose of “control[ing] this … resource which is vital to the nation’s economy and security.  Because railroad land grants were split and the surface rights were sold to individuals, many of the mineral rights on those tracts of land are now owned by corporations.”  We all understand that corporations have no real obligations to anyone who isn’t a shareholder, but the same can’t be said with governments.

Though the government has the authority do this, granted by the corporate people’s representatives in Congress, should they always be allowed to do so?  Is our energy security really threatened if the oil and gas industry is not allowed to poke holes in the earth anywhere they find evidence of carbon-based sources?  Shouldn’t the rights of homeowners who live in close proximity to these oil and gas finds be allowed some say in whether or not actions that emit toxic substances into their air and near water sources take place?

One research paper addresses this issue positing that:

“property rights … in which all parties with surface rights within the designated radius of the development [should] have the same kind of transferable veto over development held by the actual development property.  Before development, the developer would be obligated to negotiate an agreement with all owners within some development radius. Property Rights Regimes to Optimize Natural Resource Use -Future CBM Development and Sustainability (p. 485)

The laws in each state follow the basic guidelines laid out by the courts but keep in mind that some of these laws are arcane and beyond the scope of knowledge we now have that shows gas and oil extraction, especially using the method of fracking, have issues that harm people and the environment.  Keep in mind too that these laws are man-made and enacted often out of self-interests rather than a common interest.

Thus the notion that property or the minerals below them exists as an unalterable right of individuals is one that doesn’t exists in any natural state – a state we all preceded from before we became a civil society.  So does this observation open a door to counter the traditional claims of mineral rights?  A notion that feels compensation is due those who are prevented from extracting those minerals?

This argument is not a new one and my contention moving forward on this is derived from an earlier premise espoused by one of the early American heroes whose writings helped establish the new nation.

Thomas Paine, in his 1795 essay Agrarian Justice expounded on both the benefits and evils produced by civilized life.

“The most affluent and the most miserable of the human race are to be found in the countries that are called civilized.

Poverty, therefore, is a thing created by that which is called civilized life. It exists not in the natural state.
Civilization, therefore, or that which is so-called, has operated two ways: to make one part of society more affluent, and the other more wretched, than would have been the lot of either in a natural state.”

Now you may jump to the conclusion that Paine is going to rally the poorer masses to overthrow the landed gentry of his time.   In reality though, what Paine lays out in his essay is a defense of those who both cultivate the land they own and those who have essentially lost their natural rights to the land prior to civilized life.  In the prior natural state of hunter and gatherers, not unlike the conditions Paine noted at the time of the North American Indians, there was no such thing as land ownership or its sidekick, mineral rights.

“It is always possible to go from the natural to the civilized state”, Paine writes, “but it is never possible to go from the civilized to the natural state. The reason is that man in a natural state, subsisting by hunting, requires ten times the quantity of land to range over to procure himself sustenance, than would support him in a civilized state, where the earth is cultivated.”

Screen shot 2015-06-25 at 12.13.26 PM

From this proceeds the argument that civilized nations – upon cultivating the land – can sustain larger populations than humans were able to in a natural state which relied primarily upon hunting and gathering practices.  This is seen as a benefit by Paine that civilizations create.  As a benefit it also justifies the rights of some to possess land, provided of course that they are productive with it to not only benefit themselves but the others who become dispossessed of the land.

A benefit to this arrangement is that it frees some up to pursue other activities that can also be seen as benefits to civilized society.  But it also leads to evils where monopolies of land are formed creating a power base for a select few.  That though is a debate for another time.

Paine’s essay attempts to create a system of justice for those who lose their natural rights to the land for the benefits achieved from cultivated land in a civilized society.  It is his notion however about who really has a legitimate right to the land and the minerals below it that I want to focus on.  It is a position that undermines the argument of those who claim that if they are prevented from exploiting the minerals below their land from citizen actions on the local level then that local government owes them the money they feel they would lose by this restriction. 

“What is this you call property? It cannot be the earth, for the land is our mother, nourishing all her children, beasts, birds, fish and all men. The woods, the streams, everything on it belongs to everybody and is for the use of all. How can one man say it belongs only to him?” – Massasoit, chief of the Wampanoag, credited with saving the English at Plymouth Colony from starving to death

If the property owner is not actually cultivating the land, improving it or making it more productive than he or she found it, or has not contributed to the existence of the minerals below his land, then do they have a valid claim for compensation when restricted from exploiting them for personal gain?  Paine doesn’t seem to think so.

“There could be no such thing as landed property originally. Man did not make the earth, and, though he had a natural right to occupy it, he had no right to locate as his property in perpetuity any part of it; neither did the Creator of the earth open a land-office, from whence the first title-deeds should issue. Whence then, arose the idea of landed property? I answer as before, that when cultivation began the idea of landed property began with it, from the impossibility of separating the improvement made by cultivation from the earth itself, upon which that improvement was made.”

It is only by virtue of the land’s cultivation Paine argues that makes that property of real value.  It was in part this intent of the nation-state to grant land leases with the understanding that they would be cultivated to provide for the common good as well as personally profiting from it.  From Paine’s perspective, to remove land from the state of natural rights to one that profits only the individual is part of the evil with civilized nations.

Is the concept of natural laws over man-made laws too dated of an idea?  Conservative Frank Perkins of the Family Research Council seems to think it has precedence in their opposition to same sex marriage.

Following the 5 to 4 Supreme Court ruling last Friday that stated it was unconstitutional for states to ban same gay marriages, Perkins protested by asserting “No court can overturn natural law. Nature and Nature’s God, hailed by the signers of our Declaration of Independence as the very source of law, cannot be usurped by the edict of a court, even the United States Supreme Court”

Perkins is not someone who I would align myself with on religious issues but his attempt to interject natural rights over man-made laws demonstrates this argument is still a conscious thought and could appeal to a public who too often sees their representative form of government catering to special interests over common interests.

Common interests support a ban on fracking where it does not for a ban on same-sex marriage.

Are those who oppose us in this battle to ban fracking within the city limits making productive use of their property or do they simply possess it for future monetary gain that only they benefit from?   Even more important, do they have any right to claim compensation for minerals below their land which they had absolutely nothing to do with  in their creation or development?

Now I’m not saying that the benefits of oil and gas as they currently exist should be shut down post-haste.  In the earliest days we began to exploit these resources, and as I mentioned earlier we had no knowledge of their ill effects to public health and the environment. These carbon-based resources enabled us to prosper and grow as a nation though it is clear that not everyone benefited equally from this.  This would speak to the evil Paine references in his essay about civilized life.  That’s not a case I want to make here, though clearly there is one that has been made loud and clear on such inequality.

We now know however that gas and oil extraction, especially from shale rock through fracking poses health and safety risks for people and the environment.  The laws that protect this industry are outdated and too easily dismiss the concerns of surrounding property owners affected by fracking.  The state does have a right to promote energy sources so that our economy benefits from them but they also have an obligation to ensure that this right doesn’t overlook other rights and responsibilities as the authors of the study above noted. I would add that this responsibility includes finding other sources of energy whose production doesn’t pose the health and safety risks associated with fossil fuels.

Screen shot 2015-06-25 at 10.43.29 PM

When the Texas legislature voted to nullify the fracking ban in Denton, Texas last month with the passage of HB40, they did so with little regard for the new knowledge we have about gas and oil extraction and with the support of the industry who contributes heavily to their campaigns.   A clear conflict of interests.

Property owners who allow the gas and oil industry to exploit the shale gas beneath their land are compensated for this.  Being prevented from doing so however because this for-profit action also poses health and safety risks for the general public, doesn’t automatically mean that they are entitled to compensation from local tax payers.

In the words of Thomas Paine “It is a position not to be controverted that the earth, in its natural, cultivated state was, and ever would have continued to be, the common property of the human race.”  I submit therefore that any claim to compensation for common property, i.e. mineral rights, is null and void or at the very least be shared with the general population as a part of their rights granted by nature.

This does not dispossess those landowners of their property.  It does however direct them to find other ways to cultivate their land in ways that do not pose serious risks for their neighbors. Ways that will give them a just and honest account for earning revenue from it.


Fracking and environmental (in)justice in a Texas city
Mineral Rights and Fracking

25 responses to “Are Mineral Rights Exclusive From Neighboring Property Owner Concerns?”

  1. Its hard to understand such an argument when you are being paid not to. Corruption is not a problem just in Texas, it is everywhere. Unfortunately most corruption doesn’t result in earthquakes, flammable drinking water, and toxic chemicals being strewn all over and all in the name of profit, not our existence or quality of life or anything real.

    • “Corruption is not a problem just in Texas, it is everywhere”

      Exactly Steve and this is the narrative I am trying to convey that should reach across all sociopolitical views

  2. A brilliant essay. I just sent the Sierra Club (Sierra magazine) and email asking about the processes of article submission. This should be published. Will let you know if/when I get a reply.

  3. “I submit therefore that any claim to compensation for common property, i.e. mineral rights, is *null and void* or at the very least be shared with the general population as a part of their rights granted by nature.”

    Just to clarify, are you saying that all mineral rights’ owners should forfeit their rights to the state (or to nobody?), and that the state should only be allowed to extract those minerals if it can prove that it can and will do so in a way that benefits the public (i.e. does not just enrich the state because it earns money from extracting it in a harmful manner)?

    And how would we deal with the fact that people have bought mineral rights (or have inherited them) once their right to them is nullified?

    Perhaps it would be better not to say that their rights are “null and void,” automatically, but to stick with the idea that they cannot benefit from these natural resources unless everyone affected (neighboring property owners, drinkers/users of affected water bodies, etc.) can benefit as well.

    I really enjoyed reading this as it seems to be one of the most common retorts from the pro-fracking-despite-all-evidence-of-negative-effects camp. “My money! My rights!” I haven’t been able to fully think out the weakness of their position (beyond thinking that they ought to care at least a little about their neighbors and the health of the land.)

    • ” Just to clarify, are you saying that all mineral rights’ owners should forfeit their rights to the state (or to nobody?)”

      Partly perhaps. I was suggesting that where local rights (home rule authority) prevents individuals from exploiting the minerals below their land that they are not automatically entitled to compensation by that local authority for perceived losses of revenue simply because they had no hand in creating or developing those minerals. Nature and time effected this resource. If the local authority does allow drilling anywhere on their land the laws should allow the general distribution of the royalties raised from these sources, as they do up in Alaska with the oil companies

      ” and that the state should only be allowed to extract those minerals if it can prove that it can and will do so in a way that benefits the public”

      Based on Paine’s perspective from his essay the land belongs to us all. If it is not going to be used for the good of us all then it shouldn’t be used exclusively for a handful of people to profit from. Whenever we extract these gas and oil resources, regardless of who has the authority to do so under current law, we all tend to benefit from them as a source of energy to power our homes and businesses. The problem however is that now we know better than when we first started drilling for these dirty, finite sources of energy that the process by which we extract them and ultimately deliver them to the consumer has detrimental effects that are proving more of a threat to human life and the economy than we felt they were initially.

      ” And how would we deal with the fact that people have bought mineral rights (or have inherited them) once their right to them is nullified?”

      My premise asks by what right does anyone have to claim minerals that they did not cultivate, meaning that they had nothing to with in creating or developing. But Paine, in his essay (click on the link to read it in full) does offer a method of compensation to reward those who have cultivated the land and also to compensate those who had to forfeit their claim to the land for this benefit of cultivating the land that we all gain from.

      ” Perhaps it would be better not to say that their rights are “null and void,” automatically, but to stick with the idea that they cannot benefit from these natural resources unless everyone affected … can benefit as well.”

      Actually that is where I was going with this in part Merrie so thanks for highlighting that. Glad you enjoyed the read. Please share any other ideas you have about this so we can refine it to a more useful purpose

    • Use the widget tool in the “Appearance” category Gunta. You’ll need a URL to paste in the box that ask for it so just google “Bernie in 2016”, select “images” at the top of the page and then select the image that suits your fancy

  4. On this basis, after nearly destroying them entirely, the country stopped killing sperm whales and stopped slaughtering bison for sport. Of course that was helped by oil drilling. Well, now we have wind and solar power so we can move away from fossil fuels. Many of us believe that the land and the seas belong to all living beings, not just human beings. Our concern and care for a broad variety of ecosystems reflects this. As for the safety of my neighbors, should I have the right to set up a commercial shooting range on my property? There are any number of parallel situations to the dangers of fracking in densely populated areas that we instantly recognize as untenable, yet our elected representatives at every level in Texas continue to cave to the threats and promises of Oil & Gas. The time is past due to wake up, stand up, and change this.

  5. I generally agree with your community/neighbouring landowners arguments. People have a right not to have their property (or life) devalued by the actions of their neighbours. Limiting property uses to activities acceptable to the community is one of the basic premises behind zoning regulations. Zoning regulations are well established in the law…well, except maybe for uncivilized backwaters like Houston.

    I don’t immediately see how this Big Government intervention by the State of Texas (Ha, the irony! ) is much different than if they were to pass a law preventing municipalities from zoning land outright. Cities should be able to ban fracking (& fracking related activities) from all properties not zoned to allow such activities. Surely some, if not most, of the jesters on the current US Supreme Court would go for that.

    I’m not terribly familiar with the Denton fracking clusterfuck, but from my skimming of the Oil Baron’s “case”, it seems their argument is “Your rule makes it harder for us to make money and the Texas government wants us to make as much money as we can.” That sounds a bit like Ambler Realty’s argument in which didn’t wash either. Maybe a good zoning expert could draft a better anti-fracking bylaw. I dunno. Maybe restrict Denton streets to vehicles weighing slightly less than the weight of Big Oils trucks.

    Other than that bullshit law passed, I just haven’t seen any better legal argument put forward than “Big Oil wants more money, so shut the fuck up!” From what little I know, I think you have a winnable case both against the Texas law and in defence of the lawsuit. Perhaps somebody should buy the mineral rights to the Cowboy Stadium, the Governor’s home, The Alamo, etc and start threatening to rip shit up. I mean, the only alternative is…

    NOT that I’m advocating that! (If only because CSIS & the RCMP is watching!) Especially now that Herr Harper passed Bill C51. Among other fascist bullshit, it makes it a crime for me to say anything (or just voice support for others who) that might pose a completely undefined “threat” to Canada/Canadians/entities operating inside Canuckistan.,_2015 Because if I even jokingly advocated for such activity, I might find myself in a cold, dark, place where nobody will ever find me again.

    Ain’t having all your basic rights disappear just peachy keen?

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s