Subsurface Mineral Rights Matter!

Flags at Flight 93 temporary memorial. Photo by Jeff Kubina via Fickr.

Are mineral rights something to worry about when the NPS acquires park lands? You better believe they are. This fact is driven home every day at Big Cypress National Preserve and Padre Island National Seashore, to name just two conspicuous examples. At Flight 93 National Memorial, the NPS seems determined to nip a potentially serious problem in the bud.

Mineral rights, like water rights, don’t necessarily (or even routinely) get tossed in with the land when a fee simple purchase of real estate is executed. Because of this, it’s quite possible for landowners to have their property catastrophically degraded in value by the legal owners of these vital rights. Irrigation farmers and ranchers in the arid West can be put out of business at a moment’s notice if their access to water is subject to the whims of people who don’t hold their interests at heart. A homeowner can be told to stand aside as a drill rig is erected in his backyard. The NPS can be compelled to permit minerals exploration, development, processing, and transportation operations on certain national parklands.

The latter is not just a theoretical threat. There are currently no less than 13 NPS units in which non-Federal oil and gas interests are regulated by the NPS in order to protect park resources. That baker’s dozen is joined, of course, by dozens of other NPS units whose resources stand at risk of being degraded by minerals exploration, development, transportation, and processing in bordering areas.

Big Cypress National Preserve is often cited as an example of managerial problems rooted in unresolved mineral rights issues. When this park was established in south Florida back in 1974, it was created from private land and the subsurface mineral rights were not transferred as part of the deal. One conspicuous result is that the non-Federal owners of oil and gas exploration and development rights within the park (basically meaning south Florida mineral speculator and real estate developer Collier Resources Company) were not legally compelled to consider the impacts of their activities on the park or obtain permits from the NPS to conduct their business within the park – business that meant seismic testing and the construction of access roads, small airstrips, staging pads for drill rigs, and other things capable of producing harmful pollution and habitat degradation.

Admittedly, no serious spills or flagrant environmental abuses occurred in Big Cypress in association with oil development that yielded 19 producing wells in the park by 2002. However, it wasn’t until the late 1980s that Federal rules and regulations “governing the exploration for and development and production of non-Federal interests in oil and gas located within the boundaries of the Big Cypress National Preserve” were finally put in place. The matter of actually buying out the non-Federal oil and gas interests in Big Cypress is something that wasn’t seriously investigated until the early 2000s.

Over at Padre Island National Seashore, oil and gas exploration and development was well established before the park was created in 1962 and was continued under terms of the land acquisition agreements. In fact, Section 4(a) of the park’s enabling legislation very clearly states that the Secretary of the Interior “shall permit a reservation to the grantor of all or any of the oil and gas minerals in such land and waters with the right of occupancy and use under such regulations as may be prescribed by the Secretary.”

By 2005, a total of 78 oil and gas operations had been initiated within the borders of Padre Island National Seashore. These projects, some of which were conducted in the 1950s before the park was established, included 62 wells, seven pipelines, and nine seismic operations. New drilling operations recently initiated in the park may add to the current tally of operations, which includes three producing gas wells, two inactive gas wells, one water well, and six pipelines.

This brings us to the site of the Flight 93 National Memorial currently under construction in southwestern Pennsylvania. If you’ve been following the news lately you might have seen that the NPS is moving ahead with plans to acquire the oil and gas rights on a key 275-acre tract of the memorial property (including the impact site of the crash) as part of ambitious plans to have the memorial ready for dedication by September 11, 2011, the tenth anniversary of the 9/11 terrorist attacks.

When transfer of the oil and gas rights could not be agreed upon during negotiations between the NPS and property owner, Svonavec, Inc., the matter was left open so that other elements of the agreement – most particularly the land transfer -- could go forward. Now it is time to take care of this important piece of unfinished business.

We’ll stay tuned for further developments.

Postscript: Calling oil and gas extraction “resource development” is an interesting choice of terms. As experimental physicist (and Rocky Mountain Institute co-founder) Amory Lovins once observed, “I’d love to be able to ‘develop’ my bank account by taking money out of it.”