March 7, 2008

Mineral Rights Letter Not Properly Framed

In response to the letter to the editor from George Garton in the Feb. 29 issue: The premise of his position incorrectly frames the argument.

The mineral owner has not assumed the right to "take for its use part or all of the surface owner's property." The mineral owner has the lawful right to access the surface property to develop the mineral estate, and that is not assumed. It's the law.

He suggests there is no "reciprocity," and this is not accurate either. Surface owners have always developed their property as they see fit without any consideration for the mineral owner's interests. There are thousands of acres of minerals that are now sterilized and rendered undevelopable as a result of surface development. No consideration is given to the mineral owner when this happens. Is this about to change?

To suggest there is a taking of surface owner's property is unfair. First of all, surface owners need to recognize that they were able to purchase their property at a significant discount because the value of the mineral estate underlying their property was paid for, taxed and maintained by someone else. That mineral owner has as much right to his estate as does the surface owner. The surface owner should have as much obligation to notify the mineral owner of plans to develop the surface tract, which will impact future development of the mineral estate.

When a surface development impedes mineral development or renders part of the mineral estate undevelopable, then the mineral owner suffers economic damage. Is it unreasonable that mineral owners seek damages from a surface owner when the surface owner's development renders the minerals unusable?

As to compensation, and it appears to me that that is what this argument is really all about anyway, Mr. Garton suggests that the surface owner should be entitled to some portion of the value of the minerals. I wonder then if it would be fair for the surface owners to pay an overriding royalty to the mineral owners for the value of the surface tract.

If we are to be fair when considering massive change in the law, then we must consider these elements as well. Mineral estates are often more valuable than the surface land, and mineral owners have rights that must be protected as well. If there is to be change, then a balance will have to be achieved that recognizes the value of each estate. I suspect a surface owner better prepare to offer the same to mineral owners as they think mineral owners should offer them.

Denny Harton
SurfaceIMineral Owner
Parkersburg