January 2012 - Parks & Recreation - 21

By James C. kozlowski, J.d., Ph.d.

LAW re vIe W

Private Property Mineral Rights
under State Parks

W

Hen PriVaTe land is originally conVeyed to develop a state park, the

State may not in fact have acquired all of the property rights associated
with a given parcel. In particular, pre-existing subsurface mineral rights
may have been retained by the original owner and/or conveyed to other private parties.
As illustrated by the recent state supreme court opinions described herein, a private
party who has the right to mine a tract of land also " has the right of possession even as
against the owner of the soil, so far as it is necessary to carry on mining operations. "

As a result, the State may not unduly interfere and/
or burden the use and access to such private property rights in the interest of state park preservation
and resource protection. On the contrary, any regulation of such private subsurface mineral rights to
protect park resources must be reasonable and not
so burdensome as to effect an unconstitutional regulatory " taking " of private property without just compensation. On the other hand, the private owner of
such subsurface mineral rights is also " limited by a
good faith requirement that it use the surface area
only in a reasonably necessary manner to extract
the minerals. "

Jason PraT / Flikr

Oil Creek State Park, Pennsylvania
In the case of Belden & Blake Corporation v. Commonwealth of Pennsylvania, Department of Conservation
and Natural Resources, 600 Pa. 559; 969 A.2d 528;
2009 Pa. LEXIS 664 (April 29, 2009), plaintiff Belden
& Blake (B&B) notified the Department of Conservation and Natural Resources (DCNR) that it was in the
preliminary stages of developing gas wells on three
parcels of property in which it owned oil and natural gas estates in Oil Creek State Park. The defendant Commonwealth of Pennsylvania through DCNR
owns and operates the surface of the state park.
B&B posted bond with the Department of Environmental Protection (DEP) as required by the state
oil and gas law to secure well closure, well site reclamation, and pollution remediation costs. DCNR,
however, sought to impose an additional " coordination agreement " on B&B before allowing it to access

the parcels. The terms of the agreement would require a $10,000 performance bond for each well, and
$74,885 in stumpage fees, double the fair market value of the timber to be removed.
B&B objected to this DCNR requirement and pursued judicial review in state court claiming " an implied easement with a right to enter the parcels was
acquired with the oil and gas estates. " Accordingly, B&B sought a court order to enjoin (i.e., prohibit) " DCNR from further interference with its rights. "
In so doing B&B alleged DCNR had effectively refused B&B access to its subsurface oil and gas property rights " by imposing unlawful bonds, fees, and
an unnecessary right-of-way (as it already had an
easement). "
In response, DCNR contended that it was " authorized to condition the surface use of a state park "

" A grant or
reservation of
minerals and
the right to
mine them
constitute
property
rights, which
the law
recognizes,
and which
may not be
taken for
public use
without
compensation. "

Oil Creek State Park

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January 2012 - Parks & Recreation

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