Triple Divide: Split Estate

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Our Land

by Laurel Dammann for Public Herald

The following is a look at terms from Public Herald’s feature length documentary Triple Divide that focusses on hydraulic fracturing in Pennsylvania.  Hydraulic Fracturing, or “fracking,” is the process of extracting natural gas by sending millions of gallons of water mixed with chemicals and sand under tremendous pressure to deep shale layers to crack open the shale and release the gas.

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Forced Pooling

With the fracking boom moving into full swing, tensions are rising between landowners and gas and oil companies, especially as previously overlooked laws come into play.  Generally, to drill a well, the oil and gas company must acquire the rights from local land and mineral owners.  If the landowners refuse, the company must move in a different direction and, in thirty-nine states, that direction is “forced pooling.”

Forced pooling allows oil and gas companies to drill despite a landowner’s objections, as long as the landowner’s neighbors have signed the lease.   The required percentage of landowners in agreement with drilling fluctuates from state to state, with New York requiring 60% agreement and Virginia 25%.  Law stipulates that both willing and unwilling parties be compensated for the extraction of their minerals, a price often based upon the proportionate percentage of the landowner’s mineral resources included in the drilling unit.

The concept of forced pooling has generated a multitude of court cases that have reached public eye.  While many states contain some form of a forced pooling law, states that fall within the coveted Marcellus Shale region, like New York, Ohio, and West Virginia, are currently in the spotlight.  Pennsylvania, a state that contains vast expanses of the mineral-rich Marcellus Shale, has an outdated forced pooling law that does not apply to the shale and has therefore been targeted by oil and gas companies as a forced pooling priority.  No new legislation has yet been introduced.

Split Estate

When the United States began parceling off property to its citizens in the 19th century, ownership was generally straightforward: landowners had what was referred to as a “fee simple estate” and it included rights over the property in its entirety.  However, as technology marched forward and the demand for mineral resources escalated, landownership in the United States became divided.

Today, in Pennsylvania and many other states, landownership is frequently split between “surface rights” and “mineral rights” i.e. ownership over the surface of the property and ownership over the resources beneath the property.   In many cases, mineral rights are further divided and a property’s oil and gas resources can be owned by separate companies.  When a company seeks access to a property’s oil and/or natural gas, they must first find out who owns the property’s mineral rights; in some cases the owner of the mineral rights is a previous landowner who no longer resides on the property in question.  

As Pennsylvania recognizes both the surface owner’s right to clean, air, soil, water etc. and the mineral owner’s right to extract a resource, the boundaries become blurred when either side of the split estate decide to exercise their rights.

Fracking has made the issue of mineral and surface rights one of increasing contest, but recently the validity of this contest is under question by the Pennsylvania Supreme Court.  At the center of the case is an established state law from 1881 which explicitly defines minerals as only metallic substances like gold, silver, and iron.  With the Marcellus Shale Region in Pennsylvania currently the most productive natural gas field in the country, the stakes in this case are high and in limbo.