Oil and Gas are not Property, Part II…

Previously, I have argued that oil and gas should be subject to the public trust. I would posit further that oil and gas, in situ, is not really property. When someone references “oil and gas” or “all oil and gas” they are really talking about the bundle of rights that make up the rights to use the property to explore for and if found, produce and market oil and gas. This is because there is no way of knowing whether or not oil or gas exists. Even if it does exist, it is always subject to the Rule of Capture, that someone else in the same pool, or close enough to drain the pool, could capture the oil or gas first. Thus, there is no real ownership (and no real property) until oil or gas is reduced to possession.

Consider, then this real life scenario. Two exceptions are made in 1928 and 1932 respectively, of “…all the oil and gas in or under the herein described lands, with the right to operate for same by ordinary methods now in use” and “…all petroleum oil and natural gas together with the right to prospect for, drill and bore for, produce and remove the same.” The question is, whether these words were intended by the parties to the transactions to allow use of the modern horizontal drilling and hydrofracturing method for removal of oil and gas from under the properties being conveyed.

Clearly, the intent of the parties at the time of the severances was to limit the oil and gas estate to that which was capable of being extracted by the usual and ordinary methods in use in 1928. A limited exception introduced certainty into the transaction for the parties. The buyer would have had a reasonable expectation of the extent of the exception and, most significantly, the method by which encumbrance of the exception was limited. Both parties would have known the expected life of a well, the time it took to develop and market oil and gas and certainly would have known that – at some point – there would be no more oil and gas being produced, as the usual and ordinary methods at the time of the severance would have removed “all” of the oil and gas capable of being removed in that manner.

Finally, the second exception. This one was dated 1932 and stated “…all petroleum oil and natural gas together with the right to prospect for, drill and bore for, produce and remove the same.” This later exception and reservation contains language commonly understood at the time, such as drill and bore for, produce and remove. It does not, however, contain words such as “stimulate”, “rework” or “deviate”, which words could have been commonly understood at the time. It also does not contain the words “hydrofrack”, “laterally drill” or “horizontally drill.”

The issue is whether “oil and gas” or more specifically “all oil and gas” is a thing in and of itself, or whether it is made up of sticks in the bundle of rights. If made up of sticks, it can be split vertically, horizontally, breadthwise and also in time. So there are two differing interpretations. One views “all oil and gas” as being a whole thing embodying all rights necessary, even if not state. This follows the case of Belden and Blake v. Commonwealth, Department of Conservation and Natural Resources, 600 Pa. 559, 969 A.2d 528 (Pa. 2009) and demands the implication of the right of access pursuant to Chartiers Block Coal Company, 152 Pa. 286, 25 A.597 (Pa. 1893). A second viewpoint sees all oil and gas as being modified by the following phrase “with the right to operate for same by ordinary methods now in use”. By this view, only the oil and gas which could be operated for by ordinary methods in use in 1928 were conveyed. The rest of the sticks in the bundle were sold with the property. In addition, the second exception was also limited and did not allow certain modern techniques.

It is the intention of the parties at the time of entering into a transaction that governs and such intention is to be gathered from a reading of the entire deed. Stewart v. Chernicky, 439 Pa. 43, 266 A.2d 259 (1970); New Charter Coal Co. v. McKee, 411 Pa. 307, 191 A.2d 830 (1963); Wilkes-Barre Township School District v. Corgan, 403 Pa. 383, 170 A.2d 97 (1961). The primary function of a court is to ascertain and effectuate the intent of the parties at the time of the original conveyance of the property from the common grantor. Jedlicka v. Clemmer, III, 677 A.2d 1232 (Pa.Super. 1996). When a deed is capable of two constructions, the most reasonable construction should be the one adopted. Id. The nature and quantity of an interest conveyed must be ascertained from the instrument itself and cannot be orally shown in the absence of fraud, accident or mistake. Brookbank vs. Benedumtrees Oil Co., 389 Pa. 151, 131 A.2d 103 (1957).

The severances in this case were expressly limited. The oil and gas estate was limited by production methods then in use. One can argue that oil and gas is not property in and of itself, as it is incapable of being property until it is in actual possession. Otherwise, the Rule of Capture is illogical. Imagine, Exxon bought 1,000 acres and fully developed the Elk Sands. Thereafter, they farmout the production, removal, transportation and marketing of oil and gas to Shell. Years later, Exxon finds out there are shale gasses which can be accessed from an adjoining property. Exxon cannot simply drill from an adjoining property and ignore the rights they granted and intended to grant to Shell. Exxon only owns the oil and gas when it retrieves it from the subsurface strata in which it is held (the Rule of Capture). Until captured, the ownership issue is not an issue of ownership of “oil and gas”, but who owns what production rights to the oil and gas. It is a fact specific determination whether Shell’s rights are impacted. In effect, either no one “owns” the oil and gas or it is irrelevant who “owns” the oil and gas. Either way, Exxon does not have an implied right to ignore its previous contract with Shell. This is not an academic argument. All over the Commonwealth, different contracts, exceptions and deeds use different language at different times. There is no earthly reason why they should all be treated the same.

Rather, oil and gas is an estate consisting of a bundle of rights that allows the production and development of oil and gas. Texas law describes the oil and gas estate in this manner. French v. Chevron USA, Inc., 871 S.W.2d 276 (C.App. Tx. 1994) (“mineral estate possesses five essential attributes: (1) the right to develop; (2) the right to lease; (3) the right to receive bonus payments; (4) the right to receive delay rentals; and (5) the right to receive royalty payments.” at 277.) Texas has had much more oil and gas production for a much longer time period to deal with these esoteric issues of when oil and gas is reduced to possession, when it actually becomes property capable of being legally protected and what the nature of that property is at any given point in time. Even assuming, arguendo, that oil and gas in situ could be owned, it is at best one stick in the bundle of rights. The ability to develop the oil and gas estate was limited such that no owner could. proceed without the other’s acquiescence. To hold otherwise does not give effect to the plain language of the instruments in this case and defeats the intention of the parties to the original transactions.

Accepting recitation of Belden and Blake as providing all rights, regardless of the parties’ intent, disregards the ability of private parties to contract as they wish. Belden and Blake involved a public entity demanding rights which exceed than of a private landowner. If Belden and Blake preempts the rights of landowners to negotiate a contract, then it is an impermissible judicially created infringement upon the ability of landowners to contract for the sale of their property in the manner they see fit. Oil and gas in the ground is a finite resource. The total exercise by an oil and gas company of the rights a landowner claims to own, destroys any chance for the landowner to exercise those rights in the future, or in a different manner.

Climate Capitalism or Free Market Environmentalism....

If capitalism is the thesis, then community ownership is the antithesis. Capitalism, concerned only with profit and loss, never recognizes or questions whether the output is desirable. It ignores equality of conditions I reverence of equality of the right to inequality. Communism bows to equality to the extent it ignores the individual, their needs, abilities and independence. In short, there is a leveling which is incompatible with liberty.

Environmentalists have fallen prey to seeing capitalism as greedy, unthinking rapacious and a net loss. In fact, capitalism also allows innovative actions which favor the environment. It is less expensive to use less energy. People prefer to work in clean, green, buildings. There is more profit in doing the same with less material. In general, material that can be easily replaced is less expensive than one that is not renewable. An excellent treatise on this issue is Climate Capitalism: Capitalism in the Age of Climate Change, L. Hunter Lovins and Boyd Cohen, New York: Hill and Wang ©2011 1st ed., ISBN: 9780809034734.

Nevertheless, environmentalists have pursued the Public Trust Doctrine and environmental, largely negative, regulations to achieve desired new of clean air, clean water and open space. The environmental tragedies engendered by the Tragedy of the Commons has justified this regulation. The Tragedy of the commons refers to the situation where a resource is free to use all, such as a pasture or a fishery. Each individual must rush to get the most grass or the most fish because the benefit of such grass or fish is all his and the detriments are spread throughout all users of the common. In this manner, everyone acts at maximum resource jeans the resource is destroyed. This is tantamount to community ownership.

If the Public Trust Doctrine is the antithesis, then the thesis is defended and explained by Free Market Environmentalism, Terry L. Anderson and Donald R. Leal, PALGRAVE, ©2001.

 ...free market environmentalism emphasizes the positive incentives associated with prices, profits, and entrepreneurship, as opposed to political environmentalism, which emphasizes negative incentives associated with regulation and taxes. 

Free Market Environmentalism, p. 4. Clearly this more classically libertarian viewpoint emphasizes market roles and would be conducive to individual contract, relationships and choice.

Interestingly, the theory is not willing to move toward a full free market solution.

The emphasis of free market environmentalism on private ownership and decentralized decision making should not be taken to mean that there is no role for government. ...government has an integral role to play in the definition and enforcement of property rights. 

Id., p. 5. Presumably, this is because certain environmental attributes, such as air, are difficult, if not impossible to value.

However, the recognition of a public role is also because it is only through some type of organized system recognized by all (a “government”) that the market can be protected to work.

At the heart of free market environmentalism is a system of well-specified property rights to natural and environmental resources. ... Whether these rights are held by individuals, corporations, nonprofit environmental groups or communal groups, a discipline is imposed on resource users because the wealth of the property owner is at stake if bad decisions are made. 

Id., p. 4.

The negative governmental view of Free Market Environmentalism stems from the relative apportionment of benefits and detriments. The environmental detriments of environmental degradation such as pollution spread over a large group, while the benefits are concentrated. In addition, there is no good way to measure some values, such as recreational values. Recreational values are seen more as political issues. Since political costs are spread over the electorate and there is no easy way to make politicians accountable, these political costs must be privatized so the market can capture the costs.

Free market environmentalism depends upon property rights that are defined, defendable and transferable. The authors argue against public ownership of wildlife and specifically cite the Recreational Fee Demonstration Project of 1996 as a good government program. Interestingly, they view land trusts as a form of private ownership. “Instead of promoting a public trust approach that opens access to water, land, and wildlife, policies can encourage contracting for access so that recreational and environmental resources become assets, not liabilities." Id., p. 74. If rights were defined, essentially privatized, then the bargaining would be between, for instance, a landowner and an oil company. Supposedly, each wants other happy. The suggestion is that environmental groups could bid on oil and gas. Alternatives for protection would then be some type of conservation easement for recreational values or a trust authority to protect multiple interests.

To sum up, free market environmentalism insists upon the removal of incentives like insurance and crop subsidies that hide effects of global warming. The removal of fishing subsidies which make it cheaper to fish, inflate fisherman's profits and keep marginal fishermen fishing. Government’s role is relegated to facilitating the evolution of private property rights and providing positive incentives. There is particular attention paid to public lands and user fees. In the alternative, there is proposed a trust approach comprised of so-called "wilderness endowment boards".

The theory of free market environmentalism is instructive. It specifically plays upon the self interest of individuals and makes use of existing structures such as corporations and land trust. However, there remain holes in the theory. For instance, the purchase by private groups of recreational rights on privatized public lands means buying the land twice for recreational groups, while the exploration and production companies would only have to pay once. In addition, the theory of free market environmentalism assumes equal bargaining power. Clearly, in Pennsylvania, this is not always true. Small landowners simply do not have the bargaining power of a large rancher in the west. In fact, gas companies want, and are trying to force, small owners into forced unitization and pooling. Finally, free market environmentalism emphasizes the possibility of land trusts and wildlife endowment boards, but does not sufficiently explain why the government could not be considered the trust authority.

In addition, the necessity of government intervention in the classical, bureaucratic and regulatory sense, should be questioned. The authors of Free Market Environmentalism themselves recognize the importance of common law nuisance as a way to use the market to defend private property rights. They even include a chapter discussing what is essentially mutualism and the formation of communal methods of enforcing norms. In this extensive discussion, six factors that allow communities to work in the free market formula are identified. First, boundaries must be clearly defined so those in group know what they can use how and outsiders know when trespassing. Second, group decisions require rules that determine allocation of value. Third, customary rules must be linked to time and place specific resource constraints so that resulting rules are efficient. Fourth, there must be effective monitoring of rules. Fifth, there must be dispute resolution mechanisms. Finally, the community rules must not be subject to change by higher levels of government. Id., p. 145-146.

As a synthesis of two ideas, government ownership and privatization, the tools of the common law and community norms should not be given little weight. In fact, they should be encouraged. The problem has been for too long that government bureaucracy has been concerned with development to the point where it has “protected” development interests at the expense of other interests. Thus, the true market cost is not felt and there is not free competition in the marketplace. The only explanation for many of this objection is the lack of direct political accountability. Any bad action today is subject to the forgetfulness of the public and the whims of an electorate in a subsequent election cycle.

Rather than privatize all public ownership to correct the vagaries of the political process, I would like to make a different proposal. Retain common law rights to force the costs of polluting or developing on the polluter or developer. Encourage community based decisions about resource use, including dispute mechanisms and monitoring of rules. In order to make these binding, correct two failures of the political system so that political leadership responsible for its decisions. These corrections rely upon direct action by the citizens and do not rely upon the actions by the state.

The first proposal is for referendum. Referendum so that the citizens can propose and vote on environmental issues. The conversation could thus be directly influenced by the citizens. The citizens will set their norms, their customs and a state which infringes upon them can be stopped by the referendum of the citizens. While referendum has been criticized in many instances as a tyranny of the 51%, on a community scale, it also is the only process with the ability to foster direct democracy.

The second proposal is for recall so the political system can be directly accountable for its decisions. Elected leaders must answer to the electorate and not special interests that do not vote. Far from being revolutionary, this is a very small move, as traditional special interest groups will still exist and wield power. After all, they are made up of individuals. However, with the power of recall in the hands of the public every individual will have a stake in a very real, personal, and meaningful, way.

By retaining these common law rights, involving the communities and correcting the political system, free market environmentalism could work without the wholesale sale of the citizens assets. At the very least it provides a blueprint for a workable process.

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"Comment", por favor.

Environmental Justice.....

The other day, I was riding my bike with my son and a friend down a local bike path. The friend was not familiar with the area and asked about the group of houses on the left of the trail. I explained this was a local low income housing project that had been in existence since the 1970's or so. I explained that admission was income based, that it was inhabited by primarily African American and other low income, communities of color. He then looked to the left and asked what the large, industrial looking facility was on the other side. I explained that was the local community incinerator where the city and county trash went to be burned. Of course, a by product of such incineration is dioxin, a seriously dangerous compound. From being in the area, I also recall complaints about ash spread over cars and yards when there would be temperature inversions. I do not know which was sited first, nor whether this is a case of environmental racism or simply an unfortunate accident of geography. But it did get me thinking.

Just what is “environmental justice”? It typically is thought about in the context of poor or minority persons being sited as the location of a landfill, or targeted as the location for some equally polluting or environmentally damaging facility. The result to the population is alleged to be everything from a diminished quality of life to cancer. A civil rights case made up of a Love Canal situation.

Definitions are in order. Environmental Inequity is a geographic reality. It refers to a pattern in which hazardous waste sites, polluting industires, nuclear waste dumps and other environmental threats are located or occur near communities of color or lower economic power. David E. Newton, Environmental Justice, Second Edition, ABC-CLIO, 2009, also availalble as a ebook at www.abc-clio.com, p 2. Environmental Racism goes beyond inequities and suggests there is a reason for such inequities based on race. Id., p. 3. Environmental Discrimination is also used in referring to unequal distribution of environmental insults, but suggests other communities such as the poor or low income may be affected as well as communities of color. Id., p. 3.

Executive Order 12898 entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-income Populations” was signed by President Bill Clinton on February 11, 1994, to focus federal attention on the environmental and human health conditions of minority and low-income populations with the goal of achieving environmental protection for all communities. The Order can be found on several federal government websites. The Order directed federal agencies to develop environmental justice strategies to aid federal agencies identify and address disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority and low-income populations. The Order is also intended to promote nondiscrimination in federal programs substantially affecting human health and the environment, and to provide minority and low-income communities access to public information on, and an opportunity for public participation in, matters relating to human health or the environment. The Presidential Memorandum accompanying the Order underscores certain provisions of existing law that can help ensure that all communities and persons across this nation live in a safe and healthful environment.

The House of Representatives sought to pass H.R. 1103 (110th): the Environmental Justice Act of 2007. The purpose of this Act was to codify Executive Order 12898, relating to environmental justice, to reuire the Administrator of the Environmental Protection Agency to fully implement the recommendations of the Inspector General of the Agency and the Comptroller General of the United States. It was introduced February 15, 2007 by Democratic Representative Hilda Solis from California. This bill was referred to committee and died when the 110th Congress adjourned.

However, courts have had a hard time recognizing how to enforce environmental justice. Cases are brought under Title VI, with jurisdiction being founded on 28 U.S.C Sections 1331 and 1343. A key question is whether there would be a private right of action.

Two Third Circuit cases have answered this question affirmatively. In Chester Residents Concerned for Quality Living v. Seif, 132 F.3d 925 (3d Cir. 1997) cert. granted 524 U.S. 915, 118 S.Ct. 2296, 141 L.Ed.2d 156 (1998), cert vac. as moot 524 U.S. 974, 119 S.Ct. 22, 141 L.Ed.2d 783 (1998), a community organization sure the Pennsylvania Department of Environmental Protection. The basis for suit was that the Pennsylvania Department of Environmental Protection permitted an industrial facility in a predominantly black community. Although the Third Circuit found standing and a private right of action, the case never developed fully, as the Developer withdrew its permit and the case was declared moot. In Powell v. Ridge, 189 F.3d 387 (3d Cir. 1999) cert. den. 528 U.S. 1046, 120 S.Ct. 579, 145 L.Ed.2d 482 (1999). Third Circuit explicitly reaffirmed its position there is a private right of action.

Another early case, South Camden Citizens in Action, et al, v. New Jersey Department of Environmental Protection, 145 F.Supp.2d 446, 52 ERC 1523 (USDC NJ, 2001) , is essentially the highwater mark of environmental justice lawsuits. A community organization brought a Title VI claim against the state Environmental Protection Agency claiming a decision to issue air pollution permits for a cement processing facility would have a racially discriminatory impact. The Plaintiff made a motion for a Preliminary Injunction and the court held that:

1. the agency, as a recipient of federal funding, had an obligation under Title VI to consider racially disparate adverse impacts when determining whether to issue permit, in addition to applicant’s compliance with applicable air quality standards;

2. the community organization made a prima facie showing that the operation of the permitted facility would have a racially disparate adverse impact;

3. the harm to the community would have outweighed the harm to the permittee; and

4. the requirement that the community organization post security would be waived.

In South Camden, the motion for a preliminary injunction was granted. Specifically, the decision turned on the application of 42 U.S.C. Section 2000d which prohibits discrimination based on race and national origin by recipients of federal funding. The evidence showed that 91% of the residents of Camden, New Jersey were people of color. As mentioned, the court found that adverse health impacts were statistically shown.

However, this was before Sandoval v. Hagan, 197 F.3d 484 (11 Cir.1999) Cert. Granted 530 U.S. 1305, 121 S.Ct. 28, 147 L.Ed.2d 1051 (2000) was decided by the Supreme Court. In Alexander v. Sandoval, 532 U.S. 275, 121 S.Ct. 1511 (2001) Justice Scalia held no private right of action to enforce disparate impact cases under Title VI of the Civil Rights Act of 1964. The context of the case was not environmental justice, but rather a decision to offer English only driver exams. Justice Scalia and the Supreme Court found that 42 U.S.C.A. Section 2000d allowed private individuals to sue. They stated such a right to sue to enforce the section was “beyond dispute”. p. 1516, 280. However, in a move which gutted the previous statement, the majority held that the only prohibition is against intentional discrimination Id. Justices Stevens, Souter, Ginsburg and Breyer authored and joined in a blistering dissent that Justice Scalia's opinion basically made the Supreme Court a limited review federal tribunal.

Just as importantly, it forced anyone seeking to bring suit over an environmental justice claim to show intentional discrimination. A heavy burden in any case.

Environmental justice cases are significantly few, and for good reason after Sandoval. However one case worth mentioning is The Sierra Club, et al., v. Gates, 499 F.Supp.2d 1101 (SD Indiana, 2007). In that case, environmental organizations brought an action against the federal government to enjoin a chemical destruction program. The District Court held that the environmental organizations failed to show likelihood of success on the merits. It should be noted that this case was decided post 9/11, when it was felt there was an immediate need to get rid of chemical weapons. However, the case involved a lengthy process that had started in 1993. Also significantly, alternative waste disposal methods and sites also had environmental justice issues. One reason this case is noteworthy is because it was not brought under Title VI, but rather the Resource Conservation and Recovery Act (RCRA) 42 U.S.C. § 6972(a), the Defense Authorization Act (DAA) 50 U.S.C. §1512 et seq., and the National Environmental Policy Act (NEPA).

Essentially the argument was that a supplement to the Environmental Assessment or Environmental Impact Statement was required because of changes in processing at facilities chosen after 2005, pursuant to 40 c.f.r. §1502.9(c). The District Court disagreed and the motion for preliminary injunction was denied. In 2008, the case was finally put to rest for good.The Sierra Club v. Gates, 2008 WL 4368531 (S.D.Ind. 2008), not reported in F.Supp.2d, involved the same case on cross motions for summary judgment. The Plaintiff’s motion for partial summary judgment was denied and the Defendant’s cross-motion for summary judgment on Plaintiff’s National Environmental Policy Act claims was granted. Defendant Veolia’s motion for summary judgment on the RCRA claims was granted and the Government’s motion for summary judgment on Counts 1, 6,7,8 and 9 was granted. Basically, the court agreed that the Army had taken a hard look at NEPA and even had looked again before making its decision to send chemical weapons to Port Arthur for incineration, rather than a DuPont facility. The environmental justice claim was denied because there was no underlying basis for the NEPA claim.

Although this was not a Title VI case, it evidences the same type of reasoning. If no law was broken, there could be no discrimination.

A further interesting fact is that there seems to be no legal protection for persons of low income. While many low income persons may very well be persons of color, that does not necessarily have to be the case. Many rural families in Pennsylvania are disproportionately impacted by oil and gas drilling. In fact, in some cases, their communities are specifically targeted for facilities by oil and gas companies promising jobs, infrastructure and tax benefits to communities. These poorer, rural communities do not have the wherewithal to hire attorneys and other experts and consultants schooled in oil and gas drilling. The promises are great, but probably not as great as the market would bear. There has been talk of oil and gas companies leasing in the Erie region of Pennsylvania at $50.00 per acre. The underlying oil and gas play is the Utica Shale, which in that region of Pennsylvania is likely a wet gas play with a large residual value in liquid constituents of gas. There is also an infrastructure in place to move that product. Yet the rentals are less than what is seen in other parts of Pennsylvania for a generally more homogeneous, but less lucrative, product. Ohio is seeing the same type of activity. West Virginia has been targeted because of its friendly regulations. However, one cannot help but notice that West Virginia has consistently had a lower per capita income than most states and that Ohio has had a very high unemployment rate.

It seems that environmental justice cases must involve public education, community organizing and political action to be effective. This will be especially true when the public being affected is not one of the traditional groups to be discriminated against.

One last case, not an environmental justice case, but one which is instructive should be discussed. That case is Massachusetts, et al, v. Environmental Protection Agency, et al, 549 U.S. 497, 127 S. Ct. 1438 (2007). In Massachusetts, states, local governments, and environmental organizations brought a suit for review of an order of the Environmental Protection Agency (EPA) denying a rulemaking petition to regulate greenhouse gas emissions from motor vehicles under the Clean Air Act. This is a complicated case, which is worthy of consideration in its own right. However, for purposes here, what is important is that the Supreme Court found federal jurisdiction and state standing to challenge a decision by EPA to not regulate greenhouse gasses. EPA based this decision not on what was found in the Clean Air Act, but on the dual grounds that (contrary to their own counsel's opinions) the Clean Air Act did not give EPA jurisdiction to regulate greenhouse gasses and that even if it had the authority, it would be unwise to set emission standards at this time (2003). The Supreme Court had no trouble disagreeing with both propositions.

The lesson for environmental justice advocates is that there is a difference between an enforcement decision, or a permit, and a rulemaking proceeding. As part of a coordinated effort, a rulemaking proceeding can force action and explanation, also involving public participation and political pressure, in a way that may not be more forceful than an action to force enforcement or challenge a permit. In addition, such an action does not depend directly on intentional discrimination or a new right being found for persons of lower income. Instead, environmental justice advocates could do an end around the environmental justice aspects and try instead to simply reach the goals without directly addressing the environmental justice aspects.

I hope to write more on environmental justice in the future. I hope that our society can find a way to lessen all environmental impacts for all persons so that no one feels they are being hurt by decisions which benefit all of society. In the meantime, we must be vigilant to look for permitting and enforcement agencies to do the right thing and follow their own laws and policies. If they do not, look to those laws and policies for relief.

The Nature of Property Rights: Personal, Private and Public....

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I have been reading a lot of political economic theory lately.  Mostly Libertarian Socialist.  But it has gotten me thinking about the nature of property.   Sort of a little "hobby" of mine.  So I have been reading various textbooks, case law, and a little book by Proudhon called "What is Property?"  Some of you may have heard of it.  It is, unfortunately, not something you sit and read on a sunny afternoon, but something you read a page or two at a time and then try to assimilate. 

The first thing I did, even before reading a page of Proudhon's book, was to look for definitions of property. I turned to a hornbook where I read that “[w]hen an individual claim or interest receives recognition and protection by the state we say that the party concerned has a legal right in the matter under consideration.” So, for instance a right to be free in the possession and enjoyment of someone's land and chattels. The correlative is that there is a legal duty. Brown, Ray Andrews, The Law of Personal Property, Second Edition, ©1955 Callaghan and Company. p. 2.

“Legal rights are, however, not static things, but they may be created, transferred, and lost. This capacity in an individual of creating, transferring, and divesting himself of legal rights is known as a legal power.” Id., p.2. A person may have a legal power, but no right, as in a thief. But this still does not define “property” itself, but rather describes property “rights”.

Such legal rights have been divided in personam and in rem. Id., p. 3 In personam is a right which exists only against a person. p. 4 In rem is available against persons generally. p. 4. In personam, the correlative rights exist only with respect to a certain class of persons. With in rem correlative rights exist in persons generally. Again, useful ideas, but not a definition. So I delved further and did find the following:

In the popular sense of the word property is often used in reference to those tangible things, which are subject to the rights, which we designate by the term ownership. A man's property we say consists of lands, buildings, furniture, cattle, wagons, automobiles and the like. In the legal sense, however, property means not the thing itself, but the rights which inhere in it. Ownership, or the right of property is, moreover, nor a single indivisible concept but a collection or bundle of rights, of legally protected interests. The owner of a given piece of land or chattel has not only the interest of possession, and of enjoyment and user, but also that of transfer to another, and even of directing how it shall be disposed of upon his death.

Id. p. 6. Now, this truly is a definition! However, it is an interesting one because it does not define the thing itself, but rather the thing by our relationship to it. Sort of an “it's property because we say it is” type of definition. In fact, under this theory, you could own all the property rights and not a stitch of what any layperson would call property at all. And many people do.

The definition and concept of property is obviously more complicated. “Certain physical things, such as air, light, and running water are by their very nature incapable of being owned. It is impossible to exercise over them that power of exclusive control which is the very center of the concept of private property.” Id. p. 7. Looking at a hornbook on real property law, I found even less explanation of property. Rather there was a gradual presupposition that everything came from God, passed through the divine right of King's through their fall, through barbarian rabbles and came out the other end of a feudal system wholly intact.

Having said that, two concepts are worth repeating. First, “Proprietary rights in land are, we may say, projected upon the plane of time. The category of quantity, of duration, is applied to them.” Moynihan, Cornelius J., Introduction to the Law of Real Property, West Publishing Company, 1962. The second concept is how the philosopher Cicero (at least according to Proudhon) compared the earth to a theater. Each person is accorded a seat and holds that seat while they occupy it. When they leave it is free for someone else to occupy.

These statements hit upon an important truth.  There simply are different types of property with different qualities.  A tautology that can be quite helpful.  The real question is not whether there is or is not property.  Obviously there is some sort of property.  Different forces work upon different types to make them property or to cause them to retain value as property. It appears the definitions of property may change depending on the “plane of time” or how many seats are in the theatre and how many people want to see the show.

Proudhon seemed to think there were two different concepts:  private property and personal property.

There most assuredly is some sort of personal property.  My clothes, my house, etc.  These are - more or less - inviolate.  We as a society simply frown upon people ripping other people's clothes off.  No matter how outlandish they are.  And given the way many people would look without clothes, I can support this. But I have also learned that just because I possess something cannot be a basis on which I own it.  Otherwise, I would simply need to steal something to appropriate it.  Otherwise, I could own a person.  Last check, society still frowned on owning people.  In fact, in some circumstances we frown on "renting" people, owning some animals, owning some substances, etc.  

On the other hand, we discuss PRIVATE property also as a type of property.  So you can "own" land you have never seen and never visited.  It is possible you don't even know you own it, as you could have "purchased" it as part of an investment. It seems simple possession cannot be the basis for property. Perhaps put in a more modern context, you own what you create.  Again, to some extent this is obviously true.  I have created this text, I have created the thoughts, I "own" this.  I guess I could take ads and "sell" space, or try to copyright it as intellectual property.  I have done none of this.  But by the same token, what right have I to sell space on the sheet of paper (or the webspace) where you are reading this?  I created the text, but not the medium.  I did not create the computer on which I write.  These ideas are mine, but they are spawned by what I have read.  Nothing exists in a vacuum.  So if everything and everyone contributed to this blog - this so-called property - then everyone owns a little piece of it.  And if everyone owns it, then NO ONE owns it.  

Yet, as a society, we protect these two types of property equally. 

But should we?  Of course, no one should take your home.  But if you simply are not making productive use of something and someone else needs it, or can make productive use of it, then what is the purpose of protecting your inchoate interest?  Protection of such an interest serves only to perpetuate the tendency of money to make money, but serves no useful purpose to society other than to increase capital.  In fact, it could be argued by taking away the ability of someone else to use the property, we have actually decreased productivity. 

Do not take this question as meaning that all retirement savings or other investments should be socialized or that private property should necessarily be abolished.  The aggregation of money for investment is extremely important for large projects and can serve the public interest. 

However, is it not also possible that we should recognize the distinction between what is essentially a human need for personal property that is inviolate and preserved to them as the fruits of their labors and the private property that is nothing more than property as exists on paper?  Such a distinction could have profound impacts on the way we view the environment, agriculture, energy, and all consumer goods.  I don't suggest an answer, but let's have the debate.

There is a false and mistaken division between private and public property in the United States today.  There is also a lack of respect for personal property.  This false division and lack of respect leads to a flaw in society.  A small number of self interested individuals make a lot of decisions for a large number of individuals about what is best for everyone.  By understanding (and perhaps abolishing) the "public versus private" distinction, we can start down a path of reinventing our society and decision making to benefit all persons.

My research indicates that laws and governments - states - spend a lot of time "protecting" private property.  In many cases or places, this is defined by its juxtaposition to "public property".  In this definition, public property is that which is owned by the state, and private property is everything else.

Following these definitions, the Complaints of the Declaration of Independence and the protections of the Fifth Amendment to the United States Constitution look as if they are meant to keep the state from "stealing" someone's property.  Indeed, that is a true statement.  However, it is far from the whole story.

In thinking about property (personal, private or public), we need to start earlier and from a different perspective.  To a large extent, prior to the Magna Carta all property was owned by the king.  I recognize this is a gross exaggeration and that there are numerous examples where this was not true.  However, this is a useful place to start.  The Magna Carta essentially granted rights, or "property", as that term can be loosely used away from the king, while retaining certain rights, or "property" in the king.

Now, there is an interesting characteristic of property that everyone knows and everyone forgets.  Property owns you.  While you "own" something, you always have some sort of obligation, whether it be a tax, maintenance or simply finding a place to store the property.  And, of course, you always have the risk of loss.  After you give property away, of course, you no longer own it.  So the peculiar thing is that the only time you actually exercise all the rights of property that you may have is at the particular time you give away those rights.

That bears repeating:  only at the time someone actually disposes of their property is that person taking complete control and exercising all the property rights they own. 

Taken one logical step further, the best of all possible worlds would be to give away the (property) rights, while still maintaining the ability to direct the use and management of the (property) rights.  The king knew this when he put his seal on the Magna Carta.  The Barons that forced the Magna Carta did not get freedom from the king.  The state knows this when it allows you to "keep" your property free from taking for public use without just compensation.  On a personal level, the parent who "gives" a car to their child to drive to and from school and work, and nowhere else, practices the same type of control.

So let's use this concept and redefine public property.  Public property is not just the property "owned" by the state.  Indeed, ownership by the state is not nearly so public as one might think.  The ownership or use of the property is limited by the owner - the state - not the public.  Public property is, rather, the whole of the rights that the public has.  This includes positive rights such as traditional deeded ownership of land, as well as negative rights, such as the right to zone, or set a speed limit.  Let's also do away with the idea of the state "owning" these rights.  While modern law seems to treat that as true, I am proposing that is the wrong way of looking at things.

The King gave way to Parliament in England.  However, in the United States the King gave way to the people.  In fact, in the Commonwealth of Pennsylvania, the rights have been protected by the Commonwealth as if in Public Trust.  The Pennsylvania Constitution essentially gives the people rights which - most rightfully - should be public property.

So then, private property is everything not owned by the people, right?  One certainly can make that distinction logically.  However, there is another more fundamental distinction at play.  Since so many property rights are subject to so many rights of the public, is there not a third, more inalienable property right?  Did the Declaration of Independence not indicate there were inalienable rights such as life, liberty and the pursuit of happiness?  Can someone take your intellectual property?  You can give it, perhaps without protection, but can they actually take it?

My suggestion is that there are certain personal property rights which are inviolate.   Nor should these be limited to your thoughts.  Life, liberty and the pursuit of happiness come to mind.  The clothes on your back should be your personal property, subject to no one else's right to remove them.  Of course, the line gets blurred, but generally the fruits of your labor should be yours.  You create it, you keep it or dispose of it.

However, all other property, including the money received if disposing of personal property, and no matter whether "private" or "public", is simply property.  Again, all other property, whether "private" or "public" is simply property.

It is neither good, nor evil.  One property right is limited by another.  In a society, one in which presumably there is a social compact, the concept of correlative rights allows for seemingly incongruous positions on property.  Taxes are an example of incongruous positions.  If your personal property was inviolate, and you sell it, why wouldn't the income be inviolate.  This is because taxes are simply a method of aggregating capital that presumably the public has agreed upon (this is another subject, for another day, but remember that whole "taxation without representation" thing). 

So the important thing turns out not what kind of property right we have after all.  The important thing is what we as a society choose to do with these rights.  Right now, much wealth (a form of property) is concentrated in a few holders.  This is not necessarily bad.  A concentration of wealth allows for investment.  What is dangerous is how the decision is made how that wealth should be exercised.  In other words, how and when will it be given away?  To who?  What restrictions will be placed on how that wealth is used?  As a society, we should be wary of  allowing a small group of persons to make those decisions.  Likewise, we still have the same tensions as the founding fathers regarding the tyranny of the majority.  More recently, we need to be concerned about the tyranny of what is loosely termed special interests. 

While I cannot answer specifics as to ownership or wealth transfer or regulations and rules on the use of property (who am I to impose this order unilaterally anyway), I do suggest that people stop thinking in terms of public versus private (and left versus right).  We need to begin to think of "us" and what is best for ourselves and our children.  It is not best for a small number of private interests to make public decisions.  It is not best for the public to abdicate their public responsibility and allow a small minority of persons to hold capital with little, if any, accountability to the public.

Talk with people.  Talk with your family.  Talk with your friends.  Talk with those who disagree with you.  What kind of social conscience do we all agree a large company like Walmart should have in return for the public allowing them to exist and concentrate wealth in a small number of people?  What are we willing to do to achieve this? 

Oil and Gas as Subject to the Public Trust...

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 I have written about wildlife and the public trust. Part of the reason is that I would also like to discuss how other natural resources should also be part of the public trust. The Environmental Amendment, in fact, makes this imperative.

Pennsylvania is currently in the midst of an oil and gas boom. The Marcellus and Utica Shales. Much information about this can be found on the websites for the Pennsylvania State University Extension Service, or even found in any Google search. There can (and should) be a discussion of whether this is good or bad. However, there should also be a discussion of the nature of the rights in oil and gas. I will use this as a jumping off point for the discussion of natural resources in general.

First, let's start where we were and discuss deer. Deer are very important to the Commonwealth. They are the state animal. Throughout the years, they have provided food for Pennsylvanians, as well as an export to cities such as New York City. So successful was this export that deer needed to be protected and the taking and possession of deer, among other wildlife, is highly regulated pursuant to the Game and Wildlife Code, 324 P.S. §§101, et seq. The Pennsylvania Game Commission is even charged with managing wildlife with due regard for the Commonwealth’s hunting and trapping heritage.

Deer are wildlife that move freely on and off property. They are ferae naturae. An individual can only legally possess in accordance with the Game and Wildlife Code, 34 Pa.C.S. §§101, et seq., which requires certain paperwork. Simply shooting a deer does not make it the shooter’s property. A shooter must have a license and must inflict the mortal wound and then tag the deer before it can be legally possessed. A landowner cannot fence their property and take ownership of the deer on the property, they must have a permit to be the owner of the deer behind the fence. In fact, with fencing and the associated paperwork someone can own a deer, but if the deer escapes and is legally shot and tagged by someone else, the prior ownership can be lost. See Potts v. Davis, 149 Pa.Cmwlth 8 (1990), citing Douglas v. Seacoast Products, Inc., 431 U.S. 265, 97 S.Ct. 1740, 52 L.Ed.2d 304 (1977) where the Commonwealth Court noted, “it is pure fantasy to talk of ‘owning’ wild birds, fish or animals…”.

Likewise, oil and gas are important to the Commonwealth. Drake’s well was drilled in the Commonwealth. There are many jobs that depend upon the oil and gas industry. Oil and gas provide energy not just for Pennsylvania, but also for the lucrative eastern market. There are impacts to the environment because of oil and gas and the oil and gas industry. In addition, the oil and gas industry is highly regulated. See, e.g., Title 58 of Purdon’s. Oil and gas moves freely on and off property. They have been termed ferae naturae. Westmoreland & Cambria Natural Gas Co. v. DeWitt, et al, 130 Pa. 235, 18 A. 724 (1889). An individual can only possess oil and gas with the proper paperwork. Drilling alone does not make oil and gas the driller’s property. A producer must have a permit and take physical possession of oil or gas before the oil and gas can be said to be legally possessed. A producer cannot simply lease a property and take ownership of the oil and gas on the property, they must have a permit to drill, drill and remove gas. In fact, even if a property is leased, someone with a right to drill in the same strata can remove all the gas and the first producer’s ability to remove oil and gas can be lost. Jones v. Forest Oil Co., 194 Pa. 379, 44 A. 1074 (1900).

Commonwealth case law has long recognized that oil and gas are different by their very nature than coal, minerals or real property. Id. While the previous paragraphs’ assertions regarding oil and gas are seemingly radical, they are, in fact, based upon sound law in this Commonwealth. First, oil and gas leases and reservations are interpreted with respect to the intent of the parties at the time of entering into the contract. Szymanowski v. Brace, __ A.2d ___, 2009 WL 3790561 ( Pa. Super. November 13, 2009). The current oil and gas activity in the Utica and Marcellus Shales was certainly not contemplated. Second, recent cases have begun to develop a jurisprudence of natural resources law. Cases have recognized the difference between ownership of a natural resource and actual production rights to that resource. Moore v. Commonwealth, Department of Environmental Resources, 129, Pa.Cmwlth. 628, 566 A.2d 905 (1989); Belden and Blake v. Commonwealth, Department of Conservation and Natural Resources, 600 Pa. 559, 969 A.2d 528 (Pa. 2009). In addition, cases have recognized that oil and gas are not “land” within the classic meaning of that term. Independent Oil and Gas Association of Pennsylvania, et al., v. Board of Assessment Appeals of Fayette County, 572 Pa 240, 814 A.2d 180 (Pa. 2002). Finally, such developing jurisprudence is in accord with the best interests of the Commonwealth when dealing with other natural resources.

First, the intent of the parties must be examined. Many times courts observe the plain language of the document. Very few older documents speak about size of well pad sites, how roads are determined, what use can be made of minerals or water, or any number of any other rights necessary for production of gas shales.

In the 1930’s, wells were vertical wells with 40 acre drainage areas. Well sites may have been the size of a small truck and the expected life of a well may have been 25 or 30 years. Thus, when a buyer of the surface evaluated a reservation, they could reasonably expect a small surface impact for a relatively short period of time. Conversely, they did not expect that 79 years after their purchase, millions of gallons of water would be used to fracture subsurface zones, that such water would be injected, stored and transported in and through his property, and that 10 acre well pads with cleared pipelines would crisscross the property rendering large areas unusable. Based on the producers’ theories, if the Marcellus was pumped to exhaustion this year, the producer could come back 100 years later and pump it again using new technology. The surface owner would never be able to quietly and peaceably enjoy the estate for which they bargained.

Producers, likewise could not reasonably expect the result urged in case law across the Commonwealth. Coal, can be drilled located and tested, and the extent and quality of which can be measured with some accuracy. Thus, someone reserving coal knows what they will have in 100 years with a high degree of certainty. By contrast, an oil and gas producer will have no guaranty gas will be there tomorrow, let alone 100 in years. By fact of nature and geology, gas reservation are time sensitive and economic and law must recognize this time sensitive component to the rights of production.

In terms of pure real property law, these issues are not issues of oil and gas ownership, but rather of production rights and what those rights constitute. Recognition of oil and gas as ferae naturae, not subject to ownership as land, but only recoverable through the exercise of production rights is perfectly logical. In fact, the law has a word for such a right: profit a prendre. Such a profit a prendre is not listed as the subject of a quiet title action. 

           Likewise, jurisprudence that is developing seemingly struggles with questions of ownership of oil and gas and the exercise of rights of production. In the case of Independent Oil and Gas Association of Pennsylvania, et al., v. Board of Assessment Appeals of Fayette County, 572 Pa 240, 814 A.2d 180 (Pa. 2002), the Supreme Court found that oil and gas were not land subject to taxation. The majority based this on the principle of ejusdem generis, but Justice Nigro in concurrence (joined by Justice Saylor) made a different observation. “…I would simply hold that Appellees lacked the statutory authority to tax Appellant’s interests because oil and gas are of a fundamentally different character than real estate.” Id., at 185 [Emphasis added]. Recognition of this difference can be found in cases decided both before and after the Independent Oil and Gas Association case.

The case of Moore v. Commonwealth, Department of Environmental Resources, 129, Pa.Cmwlth. 628, 566 A.2d 905 (1989) involved a situation of interest. Moore claimed oil and gas ownership through a reservation in the chain of title to lands owned by the Department of Environmental Resources (DER). The facts and reasoning are not particularly useful here, as they were very case-specific. However, the holding is significant. Ultimately, Commonwealth Court found that Moore had title to the mineral estate (the case involved oil, gas and coal), but that the rights of ingress, egress had lapsed and were subject to reasonable regulations of DER. Thus, the court split the rights of production from the rights to the natural resource itself.

Of course this begs the question of what value oil and gas is if there are no production rights. In fact, it is the production rights which have any value at all. The industry itself recognizes this distinction and the importance of production rights as it relies heavily on leases of production rights, not outright purchase of oil and gas. There is case law calling leases sales, and the industry wants the public to believe that a lease carries rights forever. However, the contract itself, the intent of the parties, is what should govern. As we have examined, an outright sale of rights forever simply could not have been contemplated.

Courts also recognize this distinction and courts have implied production rights. The recent case of Belden and Blake v. Commonwealth, Department of Conservation and Natural Resources, 600 Pa. 559, 969 A.2d 528 (Pa. 2009), is just the latest incarnation. That case involved an alleged oil and gas owner and the attempt by the Department of Conservation and Natural Resources (DCNR) to impose rights by virtue of their status as a Commonwealth agency under the Environmental Amendment. The Court rejected these “superpowers” on the part of DCNR. However, the court also explicitly recognized that implied rights – the rights to produce – were limited to reasonable use. The Court also indicated that landowners could seek reasonable restrictions on use and could seek redress for unreasonable use.

What these cases show are courts grappling with questions of natural resources law and how to deal with those resources in the best interests of the Commonwealth. While industry wishes the courts to treat oil and gas as real property, the people can insist it be treated like what it is: energy. You can certainly feel the wind, but you cannot own it. You may, however lease your property for production of wind energy. The value is in the production rights. You can see, feel and even be burned by the sun. But you cannot own the sun or sunlight. You can however, lease your property for a solar farm. The value again is in the production rights. These production rights are not land or real property interests.

These questions seem esoteric, but as courts deal with natural resources issues in the next century, they will become more and more real. There will be questions who owns the ozone above the earth, the water below the earth, and even the radiation that may come from the earth. We can choose to treat these issues with the limited concepts of real property law, with its notions of ownership and try to decide who the lucky winners are. Or we can treat these with concepts of equity, as being a Commonwealth would suggest, and develop case law that suits the circumstances. Chartiers Block Coal Company, 152 Pa. 286, 25 A.597 (Pa. 1893), a case relied upon in Belden and Blake, foreshadowed this moment. They noted:

This is a new question, and one that is full of difficulty. The discovery of new sources of wealth, and the springing up of new industries which were never dreamed of half a century ago, sometimes present questions to which it is difficult to apply the law, as it has heretofore existed. It is the crowning merit of the common law, however, that it is not composed of ironclad rules, but may be modified to a reasonable extent to meet new questions as they arise. This may be called the ‘expansive property of the common law.’ Mining rights are peculiar, and exist from necessity, and the necessity must be recognized, and the rights of mine and land owners adjusted and protected accordingly.

Id., at 294, 295.

This is what it means to be a Commonwealth and to redefine the nature of government. What happens when the second wind farm gets in the way of the first? Oil and gas themselves should be utilized for the benefit of all citizens.  The interests that allow that development are more akin to personal property, and should be protected.  However, as a Commonwealth, for the good of all, we cannot permit the public benefit to be held hostage by a few.  Are all cases to be treated individually, or are we going to have an orderly development for the good of the Commonwealth as a whole? The system as it is set up favors those with money and those with influence. In a sense, those with something of value to lose.  I would suggest, that is true when it comes to the rights to exploit a natural resource.  However, when it comes to the natural resource itself, everyone stands to win or lose.  The people of the Commonwealth will need to use influence and strategy to plan appropriately. 

A New Relationship Between People, their Government and the Environment...

This blog started from the premise that a Commonwealth should serve the "common wealth".  Subsequent posts detailed areas where the Commonwealth does, indeed, protect its citizens.  An example is where landowners are protected from liability from allowing others to use their land for recreation.  In return, the Commonwealth furthers the interests of the public and natural resource management by promoting the use of land for recreation and allowing resource management such as hunting, furtaking and fishing.

However, in other cases, the Commonwealth has schizophrenically failed to decipher what interest is the most important.  Is it development, or open space?  Is it public or private interests? Do we allow private use of private property under the ruse that development is good, or do we require something more than an assumption that growth is good?

Finally, the posts and musings of this blog have examined the larger key concept of the Public Trust, although in a federal government versus state government vein and specifically with the subject of wildlife.

The point is, it is time the citizens of Pennsylvania - the Commonwealth of Pennsylvania - stop acting like natural resources are unlimited.  It is high time to demand the Commonwealth not allow private interests to strip the Commonwealth's citizens of their "common wealth" and send it to other states and countries for the sole purpose of making and concentrating more wealth in other states and countries.  In essence, the Commonwealth is being treated as a third world country.

This was not always the case.  Pennsylvania's iron furnaces supplied the revolution and its farms fed the populace.  Oil and gas were discovered in Pennsylvania and was first used here to light street lights and heat homes. Although cheap production and abundant supply moved this industry away for a hundred years, it has returned with a vengeance on a citizenry and government woefully unprepared to handle it.  One of the best research facilities in the world on nuclear power exists in the Commonwealth.  Our mountains are covered with wind, we have as many sunny days as cloudy days and we have recognized the value of open space and timber and protected both for our people.

This blog will continue dicussing Pennsylvania's unique relationships with the environment and with companies and persons doing business in the Commonwealth.  It will not attempt to definitively answer the questions about how we as Pennsylvanians want to connect with these issues, but will try to point out where these issues are ripe for discussion and debate.  The goal is to foster this debate and have us form a new environmental consciousness that promotes the "common wealth".

Landowner Liability...

Landowner Liability

The Commonwealth of Pennsylvania HAS recognized the benefits of open space in one very significant way.

Americans in general, and Pennsylvanians in particular, participate and value outdoor recreation. Recreational user in Pennsylvania number not in the thousands, or hundreds of thousands, but in the millions. Pennsylvania licenses almost a million hunters annually. Pennsylvania State Parks saw 33.6 million visitors in 2010. The Great Allegheny Passage Rail Trail sees 750,000 visits per year on it 132 miles. The 21 mile York Heritage Rail Trail saw 394,823 visitors in 2007. Many statistics such as this can be found in the publication “Economic Benefits of Tourism, Recreation, Trails, Conservation and Healthy Living”, by the Pennsylvania Environmental Council. Like all statistics, the statistics found in this publication can be used in different ways. However, this publication, which can be found on the web, compiles statistics from many reputable sources and, no matter how you slice it, the numbers are impressive. Total economic impact of tourism in Pennsylvania is estimated at 32.9 billion and supports an estimate 433,000 jobs.

With this much outdoor recreation taking place, you would think the Commonwealth was covered in public lands. The truth is, there are no more than about 4 million acres of public land, including State Forests, State Parks, State Game Lands, and the Allegheny National Forest. The majority of recreational land remains in private hands. Given the number of people taking the field every year, someone is bound to twist an ankle, break an arm or leg, or simply fall off a log. It is essential that landowners feel comfortable that they will be protected from liability if they allow public access for recreation.

The Act

In 1966, the Pennsylvania Legislature passed Act No. 586 of 1966, known as the Recreation Use of Land and Water Act (RULWA). RULWA was aimed at encouraging landowners to make their lands available to the public for recreational use. RULWA promotes this goal by limiting landowner liability for injuries that occur on the land as a result of recreational activity.

Persons Covered

Landowners entitled to RULWA protection are owners, tenants, lessees, occupants or persons in control of the land on which the public is recreating. This would obviously include an individual, and the courts have extended RULWA protection to the Commonwealth and political subdivisions. Owners of easements such as utilities are also protected if they exercise sufficient control over the land.

Activities Covered

RULWA defines recreational purposes to include, but not be limited to, hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing, water sports, cave exploration and viewing or enjoying historical archaeological, scenic or scientific sites. Pennsylvania courts have also included bicycling, snowmobiling and joy riding.

Land Covered

RULWA defines land to include roads, water, watercourses, private ways and buildings, structures and machinery or equipment. Courts have concluded that "buildings" and "structures," mean "ancillary structures attached to open space lands made available for recreation and not to enclosed recreational facilities in urban regions." It is this character of the land as “improved” or “unimproved” that is often determinative of whether or not RULWA applies. Recent cases indicate the courts look to many factors to determine whether RULWA applies. These factors are use, size, location, openness and extent of improvement, as well as whether the property has been devoted to exclusive public recreation.

Exceptions

No law would be complete if it did not include exceptions. RULWA preserves landowner liability for "willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity." Someone cannot ignore obvious dangers they know about (such as an open well) on their property when allowing persons to recreate, but must take some reasonable steps (such as signs) to warn persons of the hazard. In addition, RULWA does not apply where the landowner has charged the plaintiff a fee or admission price to use the land. If an owner leases his land to a hunting club, RULWA would not apply. However, if an owner allows the public to use his land free of charge, she does not lose the benefits of RULWA immunity simply because the users may organize some event which incidentally involves payment. It should be emphasized that no part of this payment can go to the owner and that the payment must not be for recreational use of the property, but rather would be incidental to the event. Bingo at a church picnic would be fine. A “big buck” pool among a group of hunters would not impact on RULWA. However, allowing “free” use of premises but insisting on a “membership” would be problematic and likely abrogate RULWA immunity.

If you are thinking about allowing public recreation and wish to take advantage of the Act’s protection, keep in mind the following:

1. Don’t charge a fee.
2. If you think it’s dangerous, post a warning (even if you are not sure whether it is obvious).
3. If you build something, or change the natural landscape, do it safely, and maintain its safety.

These common sense rules should allow a landowner the peace of mind to allow hunting on their land.

THIS IS INTENDED AS GENERAL INFORMATION AND NOT AS LEGAL ADVICE OR INFORMATION REGARDING INSURANCE POLICIES. NO INFORMATION SHEET OF THIS TYPE CAN ADEQUATELY ADDRESS EVERY INDIVIDUAL CIRCUMSTANCE. IF YOU HAVE SPECIFIC QUESTIONS ABOUT YOUR INDIVIDUAL CIRCUMSTANCES, PROPERTY, INSURANCE POLICY OR OTHER QUESTIONS YOU SHOULD CONSULT YOUR OWN ATTORNEY OR CALL YOUR INSURANCE COMPANY.

Musings on a "Commonwealth"...

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Something that has interested me is the status of certain “states” as “commonwealths”. Pennsylvania, for instance, is a “commonwealth”. Most of the residents of Pennsylvania know this to some extent. They are used to seeing “Commonwealth of Pennsylvania” on insignias, logos, etc. However, few think of it as anything special and one still hears constant references to the “State of Pennsylvania”.

Black's Law Dictionary defines a Commonwealth as:

The public or common weal or welfare. This cannot be regarded as a technical term of public law, though often used in political science. It generally designates, when so employed, a republican frame of government – one in which the welfare and rights of the entire mass of people are the main consideration, rather than the privileges of a class or the will of a monarch; or it may designate the body of citizens living under such a government.

Sometimes it may denote the corporate entity, or the government, of a jural society (or state) possessing powers of self-government in respect of its immediate concerns, but forming an integral part of a larger government (or nation). In this latter sense, it is the official title of several of the United States (as Pennsylvania, Massachusetts, Virginia, and Kentucky), and would be appropriate to them all. In the former sense, the word was used to designate the English government during the protectorate of Cromwell.

Any of the individual States of the United States and the body of people constituting a state or politically organized community, a body politic, hence, a state, especially one constituted by a number of persons united by compact or tacit agreement under one form of government and system of laws.

Black's Law Dictionary, Fifth Edition, 1979.

Reading this definition, one would think a state and a commonwealth were the same, or at least similar enough not to matter to anyone. A strong case can be made for this interpretation, as the federal government treats states the same, despite their status as a commonwealth (organized BEFORE the federal government existed in the case of Pennsylvania, Massachusetts and Virginia) or a state (whose powers derive from the federal government and the organic statutes authorizing and organizing the state).

But let's think about the first part of the definition and the philosophy that is found there. The common weal or welfare. A form of government in which the welfare and rights of the entire mass of people are the main consideration, rather than the privileges of a class or the will of a monarch. These are powerful thoughts. It is not the party, or the contributor, or even a class of citizens which should be important: it is the common welfare of ALL people. Many laws, create winners and losers in the marketplace. This is totally counter to the concept of the common wealth. Many politicians cater to the special interests which lobby them, rather than the common interests of all people. Interestingly enough, this is logical and actually makes some sense. People need to form together in groups or PACs to have influence or power. However, that is antithetical to the idea of a Commonwealth.

It remains to be seen which fork in the road the people of the Commonwealth of Pennsylvania will take. This is especially true in the areas of real property and natural resources law. The tensions of individual property ownership versus the common interest in our air, water, land, and even timber, coal oil and gas have been touched upon by legislation and courts alike. Despite what some people may wish us to think, the jury is still out. The Commonwealth of Pennsylvania has laws protecting the rights and setting the obligations of all citizens. We may still decide to raise all citizens and work for the common weal, rather than yield to the expedience of certain interests.

It will be how the Commonwealth negotiates this decision process which will set the stage for the future.