5:30am

Thu June 26, 2014
An Energy Travelogue

In Eastern National Forests, Split Estate Means Less Control

This week, I'm traveling with a group of journalists through parts of Pennsylvania and Ohio -- a region called the Marcellus Shale -- to learn about shale gas and hydraulic fracturing.

Early on in the trip, as driving rain pounded the roof of a conference room at the headquarters of Allegheny National Forest, we started learning about the concept of split estate.

This idea applies to oil and gas, but also to other minerals too, like gold and geothermal resources. What it means is that the rights to the minerals underneath a piece of land can be separated and sold separately from the land itself.

In practice, how it works is that one party can own the surface of the land, and another can own the oil, gas, or other minerals underneath. In most of the world, federal governments own all the mineral resources under land, with no private ownership. But the United States is different.

This American oddity -- that private individuals can own mineral rights -- has led to some unpleasant surprises during recent energy booms, as landowners discover someone else owns the oil or gas under their land. In Colorado, those opposing development near their land have passed bans or moratoriums on fracking in several cities.

In Pennsylvania, this quirk of law has meant that a national forest -- owned by the people of the United States -- is very limited in its ability to regulate oil and gas drilling on its lands.

"We're essentially like any other private landowner."

Most people in Colorado have probably driven through or hiked in a national forest. Owned by the federal government, these lands are often used for recreation and other purposes, including logging and energy or other mineral development.

But in Colorado as in much of the West, the federal government owns most of the mineral rights underneath its lands. In the Allegheny National Forest, they don't.

According to Paul Weese, oil and gas minerals program manager for the Allegheny National Forest, 93 percent of the forest's mineral rights are owned by private entities.

This means when someone who owns a mineral right on the forest wants to drill, the forest managers don't have much more say than any other private landowner who doesn't own his mineral rights. Forest representatives work with companies to try and minimize impact on the forest. Their success, however, depends on the goodwill of the company and the provisions state law offers to protect private landowners.

Your intrepid reporter in front of a drill rig at a Seneca Resources well pad in Pennsylvania's Marcellus Shale.
Credit Stephanie Paige Ogburn / KUNC

"We're essentially like any other private landowner," said Weese.

In contrast, the state-owned forests of Pennsylvania own almost all of their mineral rights. When they choose to lease oil and gas rights to companies, they can tell them where to build their roads, to what standards, and how to reclaim them after the drilling and fracturing process is complete.

"We make them (energy companies) do things on state forest lands that they absolutely don't want to do on private land," said Teddy Borawski, Jr., who manages subsurface programs for the Pennsylvania Department of Conservation and Natural Resources.

This is much more similar to the leeway national forests in Colorado have, since they own most of their mineral rights.

I asked the Forest Service employees if the state laws protecting private landowners in energy leasing transactions -- the laws that applied to them -- allowed them to adequately protect the forest.

They didn't really answer that question. And before I could press them on it, it was time to go. Next stop: A drill rig.

Editor's Note: Reporter Stephanie Paige Ogburn traveled in Pennsylvania, New York and Ohio on an Institute for Journalism & Natural Resources fellowship to see the effects of the energy boom in the east first hand. Her dispatches compare the boom there, with the boom right here in Colorado. You can follow Stephanie on Twitter, @spogburn.