A portion of the Loyalsock State Forest known as the Clarence Moore tract has become the focal point of a battle between environmentalists and energy giant Anadarko Petroleum Corp., which wants to develop the tract's minerals.
The state Department of Conservation and Natural Resources - the government agency that administers the land - is caught somewhere in the middle.
"We find ourselves in a unique situation in this case," DCNR Press Secretary Christina Novak said.
That's because a special provision in the Clarence Moore tract deed grants the state exclusive surface control over 18,870 acres of the roughly 25,000-acre area, according to PennFuture staff attorney Mark Szybist. While mineral rights owners typically are entitled to reasonable surface access to develop their interests, DCNR could leverage its power in this case to bar Anadarko access, according to Szybist.
DCNR does not believe it can outright prohibit Anadarko from using the surface to access its subsurface minerals but acknowledged that the deed does grant DCNR "some additional abilities" to control surface use, according to Novak.
"Our legal analysis is that we need to honor the private subsurface ownership but that we have the ability to strongly influence activities on the surface," Novak said.
Szybist disagrees with DCNR's position, citing the 1933 Clarence Moore deed provision that limits the surface-use rights accompanying oil and gas ownership to a term of 50 years for 18,870 acres of the tract. Surface rights to those acres had lapsed 23 years before Anadarko acquired the mineral rights in 2006, according to Szybist.
"Anadarko took a risk in buying that property, and I think they paid a very low price commensurate with the lack of surface access," Szybist said. "They either knew or should have known what they were getting into."
As often is the case with legal disputes, this one gets messy. In addition to the 1933 deed provision, DCNR's legal analysts also looked to the outcome of a 2009 state Supreme Court case, Belden & Blake Corp. vs. DCNR, to clarify their rights and obligations.
"There have been some more recent court decisions that have set the precedent that when there is a private subsurface owner, the surface owner needs to provide reasonable access to the property," Novak said.
But Szybist says the 2009 ruling has no bearing on the Clarence Moore tract question because the two situations are "apples and oranges." Whereas DCNR leaned on the state constitution and the Conservation and Natural Resources Act to make its case against Belden & Blake Corp., it can in this instance derive its authority through the deed.
"It's bedrock law in Pennsylvania that when you're looking at the rights of owners of real property that those rights are first and foremost determined by the deed. In the 2009 case, DCNR didn't have any special powers under its deed. Here, DCNR's position is much stronger because it has the language in its deed," Szybist said.
"This comes down to a legal interpretation and there are often differences in that arena. To actually have a final answer, it would have to proceed through the courts," Novak said.
If DCNR denies Anadarko surface access, the company possibly could "bring about a lawsuit for the issue of a taking," according to Novak.
Simply put, a taking is when the state takes private property without providing just compensation. In Szybist's opinion, Anadarko would have little grounds for a takings claim beause DCNR can't take what it already owns - in this case, surface rights.
"Even if you concede that there is a possible takings issue, the question is how much is being taken, given that Anadarko could access that resource from the outside," Szybist said, pointing out that "laterals in the Marcellus Shale are well over a mile."
Novak explained that DCNR could lose some of its power to direct the Clarence Moore development if Anadarko were to press the matter in court.
"It could go one direction or the other, where we had less ability to influence or a stronger ability to influence what happens," Novak said.
Anadarko couldn't be reached for comment at press time, but the company previously said it has taken the position that it has surface access rights to the Clarence Moore tract.