Check the status of this bill: SB3483
- Under common law – existing from the time of the founding of our country, to the creation of the State of Illinois, to the present time – a person who owns the full bundle of rights in land owns the surface and all that is below it.
- Thus, if a landowner owns the full bundle of rights in a piece of land, then drilling on, under, or through that land without the landowner’s consent would be an illegal trespass. If that were done without due process, it would be an unconstitutional taking. Under that scenario, access to the surface without the landowner’s consent would also be a trespass. But, under the Hydraulic Fracturing Regulatory Act (HFRA), notice of a horizontal drilling with fracturing operation is only required for those landowners within 1,500 feet of a well pad, despite the fact that a horizontal wellbore can go 5,000 or even 10,000 feet horizontally underground. And for a horizontal drilling with fracturing operation that is not high-volume, neither HFRA nor existing Illinois Department of Natural Resources practices require the consent of all affected landowners before a drilling permit is granted. Thus, state government is allowing the oil and gas industry to take the property of landowners without their consent and even without giving them notice.
- Even in the case of a “split estate”–when a landowner does not own all the subsurface rights in the land–for example, where the rights to drill for and extract oil or gas (“mineral rights”) have been transferred to others, the landowner still has the other rights in the subsurface. The subsurface has value beyond just oil and gas or other minerals. Stated differently, under the usual type of deed transferring mineral rights, the owners of the mineral rights do not get ownership of ALL the subsurface; they only get the right to explore for and extract the minerals described in the deed. So, the owner/s of the surface and subsurface should always get notice of plans to drill a horizontal wellbore under or through his or her land, and their consent should be required. But that is not the case under the new regulatory scheme.
- Any horizontal drilling operation is a “subsurface trespass” if the operator has not provided notice to and obtained the consent of all landowners who are over the path of the wellbore and all owners of other subsurface rights in the path of the wellbore.
Purpose of the bill:
- This amendatory bill is designed to ensure that horizontal drilling does not occur unless all the owners of the real estate impacted by the drilling, including the owners of the surface rights, the subsurface rights, and the mineral rights, have been given notice and have consented, with the exception that when an interest has been divided, the consent of those holding more than 50 percent of the total ownership interest shall be sufficient.
- The term “landowner” is defined in Section 1-5 of the statute, but the term is never used in HFRA. This proposed amendment deletes the definition of landowner but incorporates that definition into the new definition of “owner of real property”, which is the term HFRA uses with respect to notice. The proposed amendment also includes the owner of a divided interest within the definition.
Solution: Please co-sponsor and support SB3483.
— Miller v. Ridgley, 2 Ill. 2d 223 (1954); Save Our Little Vermillion Environment, Inc., v. Illinois Cement Co. 311 Ill. App. 3d 747 (3d Dist. 2000).
— Note, “Owning the Center of the Earth: Hydraulic Fracturing and Subsurface Trespass in the Marcellus Shale Region,” Colleen E. Lamarre, 21 Cornell Journal of Law and Public Policy 457 (2011), available at http://www.lawschool.cornell.edu/research/JLPP/upload/Lamarre-final.pdf, last visited February 7, 2014.
— “Owning the Center of the Earth,” John G. Sprankling, 55 UCLA Law Review 979 (2008), where the author argues for the abolishment of surface owners’ rights below 1,000 feet, available at http://uclalawreview.org/?p=351, last visited February 7, 2014.
— Regarding current illegal high-volume horizontal fracking operations without a permit, see http://www.desmogblog.com/2013/05/30/fracking-gas-shock-doctrine-unveiled-2013-illinois-legislative-session-nears-end.