LEGAL AND POLICY CONSIDERATIONS FOR VOLUNTARY CONSERVATION PROGRAMS FOR RANGE-WIDE SPECIES INVOLVING PRIVATE LANDS AND MINERALS
| Jurisdiction | United States |
LEGAL AND POLICY CONSIDERATIONS FOR VOLUNTARY CONSERVATION PROGRAMS FOR RANGE-WIDE SPECIES INVOLVING PRIVATE LANDS AND MINERALS
Nicole M. Blevins 1
Beatty & Wozniak P.C.
Denver, CO
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BRET SUMNER is a senior partner at the law firm of Beatty & Wozniak, and he is the head of the firm's federal practice group. Bret specializes in oil and gas and environmental matters. Bret handles oil and gas litigation and he regularly defends permits and projects from challenges in federal courts, and before administrative adjudicatory entities. Bret advises companies on compliance with federal statutes, including the Endangered Species Act, National Environmental Policy Act, Clean Air Act, Clean Water Act, Federal Land Policy and Management Act, and National Historic Preservation Act. He regularly advocates on behalf of clients before Executive Branch Departments and federal agencies, including the Department of the Interior, Department of Agriculture, Bureau of Land Management, Fish and Wildlife Service, U.S. Forest Service, U.S. Army Corps of Engineers, and the Environmental Protection Agency.
I. Introduction
Over the past ten years, there has been a growing number of range-wide species being listed or proposed for listing under the Endangered Species Act (ESA). Range-wide species present unique challenges for development, administration, and implementation of voluntary conservation programs under Section 10 of the ESA. The regulations implementing Section 10 have not been updated to address the necessary unique components of programmatic or "umbrella" permits and conservation programs being developed for range-wide species. These challenges are compounded when the species range is found predominantly on privately owned lands and with underlying privately owned minerals.
The range of the lesser prairie chicken (LEPC) encompasses over 20 million acres, with nearly 95% of the LEPC's estimated occupied range on private lands in Texas, Kansas, Oklahoma, New Mexico, and Colorado. Similarly, the range for the dunes sage brush lizard (DSL) in West Texas occurs primarily on privately owned surface and minerals, although range also occurs on state owned lands with active or potential oil and gas development. In New Mexico, there is a mixture of federal, state, and privately owned lands and minerals that arguably constitutes targeted species range.
The legacy landscape for both of these species encompasses extensive agricultural, ranching, and oil and gas development on these privately owned rural working lands dating back more than 100 years. The ranges for these two species fall within several of the most prolific oil and gas basins in the United States, and the prevalence of split estate lands (i.e. different surface and subsurface ownership) within these oil and gas basins presents unique and complex legal issues and challenges. U.S. Fish and Wildlife Service (USFWS) and proponents of proposed voluntary conservation programs must take into account the significant complex contractual relationships and obligations that already exist between private landowners, private mineral owners, and companies.
In terms of developing a viable and sustainable voluntary conservation program for a range-wide species found on private lands, one of the most significant factors is robust acceptance and participation by private landowners. The centralized approach for species management and conservation on federal lands (e.g. through federal lease stipulations, federal land use plans, and
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federal permit conditions of approval) is not appropriate or viable for privately owned lands and minerals.
Unlike federal oil and gas lessees, USFWS and BLM do not have the ability to impose restrictions such as seasonal wildlife or no-surface occupancy lease stipulations, or mitigation requirements on private landowners. Nor do they have the authority to access private land without permission. A voluntary conservation program under Section 10 of the ESA should be designed to incentivize broad private landowner participation by offering a variety of conservation methods and empowering farmers and ranchers to obtain funding and credits for customized conservation measures tailored to their lands.
This paper provides an overview of key legal issues that must be accounted for in developing a voluntary conservation program for range-wide species located predominantly on privately owned lands with underlying private minerals. Next, this paper discusses the need to incentivize voluntary conservation and discusses mechanisms to encourage conservation on private land.
II. Contractual and Legal Issues to Consider for Private Lands and Private Minerals
Conservation programs for range-wide species that involve predominantly privately owned lands and minerals should take into account various legal and contractual issues that may arise with respect to development on enrolled properties. These issues include: (1) split estate ownership; (2) surface use and access agreements; and, (3) various complex contractual relationships related to mineral leasing and development agreements, particularly when multiple stacked formations are owned by different individuals and/or companies. These variables should also help inform flexible adaptive management provisions and be taken into account when developing incentives for private landowner participation.
A. Split Estate Ownership
Nearly 95 percent of the LEPC's estimated occupied range is on private land in Colorado, Kansas, New Mexico, Oklahoma, and Texas. These private lands include substantial acreage where the surface estate and mineral estate are severed, i.e., the surface owner does not own any rights to the mineral estate, which is owned by another individual. This severed estate situation is referred to as a "split estate."
Similarly, for DSL habitat in Texas, the Permian Basin contains numerous stratified layers of productive formations, each owned by different private individuals. The stratification of mineral ownership may create additional contingencies to be considered for purposes of administering surface estate enrolled in a voluntary conservation plan.
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B. Split Estate Legal Framework
Common law has long held that where there is a split estate, the mineral estate is the dominate estate.2 The surface estate, in turn, is subservient to the dominant mineral estate. In other words, a mineral owner's rights are superior to those of the surface owner in the event of a conflict.
There are two main doctrines governing the relationship between the mineral estate and the surface estate: the "reasonable necessity doctrine" and the "accommodation doctrine." Under the "reasonable necessity doctrine," the mineral owner/lessee may use as much of the surface estate as is reasonably necessary for exploring and producing minerals.3 The mineral estate includes an implied right to enter, occupy, and use the surface lands, including the "rights of ingress, egress, exploration, and surface usage as are reasonably necessary to the successful exploitation of [the mineral] interest."4 This implied right exists because, "a grant or reservation of minerals would be worthless if the grantee and reserver could not enter upon the land in order to explore for and extract the minerals granted or reserved."5
Under the reasonable necessity doctrine, the surface owner has no right of recovery for surface damages from the mineral estate owner or lessee, unless the surface owner can prove specific acts of negligence or that the mineral estate owner or lessee used more of the land than was reasonably necessary.6
In contrast, the "accommodation doctrine" requires the mineral interest owner/lessee to accommodate existing surface use where "reasonable" alternatives are available for developing the mineral estate.7 Courts developed the accommodation doctrine to further define what constitutes "reasonableness." In doing so, the courts affirmed that the mineral owner will not be held liable for interference with a pre-existing surface use absent negligent, excessive, or unreasonable use by the mineral owner.8
Some states, such as Colorado, Oklahoma, and New Mexico, have enacted surface owner protection laws that impose a heightened standard of liability on mineral interest owners. For the
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states with a surface use statute, similar to BLM Onshore Order Number One, these statutes generally limit a surface owner's reasonable compensation to direct impacts on tangible items or improvements on the surface, such as lost crops, agricultural production, or impacts on structures such as irrigation. In addition, these state statutes, as with BLM Onshore Order Number One, allow a mineral owner/lessee to "bond on" to the surface in the event that the mineral owner cannot reach a surface use agreement with the surface owner. In contrast, Texas codified the dominance of the mineral estate through legislation, but did not adopt a surface protection law.
C. Examples of Common Split Estate Conflicts and Complexities
The inherent challenges of split estate ownership provide...
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