Debunking SAFE’s False ‘Subsurface Trespass’ Narrative

Note: This blog was updated with supplemental information at 11:17 a.m. on Aug. 2, 2019

Proposed “Keep It In the Ground” legislation aimed at addressing a problem that doesn’t exist in Illinois – so-called “subsurface trespass” via horizontal drilling – failed to advance out of committee during the spring legislative session.

But that hasn’t kept Southern Illinoisans Against Fracturing Our Environment (SAFE) from attempting to keep this false controversy alive with a tried and true two-pronged approach: frivolous litigation and misleading claims in the media.

The St. Louis Post-Dispatch published an article over the weekend prompted by the latest court proceedings of a now five-years-old SAFE-led lawsuit against the Illinois Department of Natural Resources (IDNR). The litigation is aimed at effectively voiding the 2013 Hydraulic Fracturing Regulatory Act based on SAFE’s contention that the regulation is unconstitutional.

If you forgot about that lawsuit and would like details on what transpired at last week’s hearing, don’t bother reading the Post-Dispatch story. The piece served more as a platform for SAFE attorney Vito Mastrangelo to advance “subsurface trespass” misinformation than a recap of the hearing.

In a key excerpt from the piece, Mastrangelo claims that,

“They (drilling companies) will be drilling under land that they did not even notify people of. People can have their land drilled through and their mineral rights taken without even being given notice.”

Mastrangelo’s statement has no basis in reality. Illinois regulators require exploration and production companies to disclose the location and track of all horizontal well bores as part of the permitting process prior to giving the green light to drill. Simply stated: Illinois landowners are fully aware if a horizontal well is drilled beneath their property. Companies are also required to secure subsurface mineral leases for the entire planned horizontal path before drilling commences.

Specifically, the Illinois Oil and Gas Act (224 ILCS 725/6(2)) requires the developer of a horizontal well to certify under penalties of perjury that oil and gas leases have been obtained from all of the mineral owners as to all of the lands along the path of a horizontal well or that the interests have been committed to the drilling unit with an applicable statutory or administrative proceeding. Under any of these circumstances, the owner of the oil and gas rights would receive notice as to the proposed well.

Furthermore, once a horizontal well is developed and production is obtained, the oil will be sold to an oil purchaser or refinery. Any purchaser or refinery will carefully review the public lands records to determine the ownership of all of the oil interests in order to confirm that payment is being correctly undertaken. This would include a careful review and documentation of all interest and the fact that they have been committed to the drilling unit. Unless this due diligence is undertaken, the purchasers or refineries would be liable for any incorrect payment.

These protocols ensure that mineral owners are compensated for every square inch that a horizontal drill bit touched prior to a well being developed.

It is for these reasons that “subsurface trespass” has never been – and will likely never will be – an issue in Illinois, where dozens of horizontal wells have been drilled. Mastrangelo’s claim is just the latest example of anti-oil-and-gas activists dishonestly pedaling problems that don’t exist in an effort to confuse the public and turn opinion against responsible domestic energy development. The “subsurface trespass” narrative is just the latest tactic being thrown up against the wall – and it has nothing to do with authentic concerns about private property owner rights.

The real aim of the new SAFE campaign is to curtail oil and gas production altogether by pushing regulations that make it as difficult as possible to conduct the conventional oil and gas development that’s taken place in the state for more than a century.

In fact, SAFE’s so-called “property rights” agenda would actually infringe the rights of mineral owners if imposed by allowing a single mineral owner to block drilling and the will of the majority of mineral owners.

Many may not be aware that Illinois mineral ownership is severed, meaning literally dozens or even hundreds of individuals can share subsurface ownership. Surface and mineral ownership are also separate in Illinois – just because you own the surface property doesn’t necessarily mean you own the minerals beneath and vice versa. For instance, I do not own 100 percent of the minerals beneath my property. I actually share mineral ownership beneath my property with no fewer than a dozen different people. That noted, the wishes of the majority of mineral owners have always ruled when it comes to development of minerals owned by multiple individuals.

This past weekend’s Post-Dispatch story seems to confuse surface ownership with mineral ownership. The article states:

“… if there is a desirable deposit that extends beneath someone’s land, companies could make a play on it without their permission — as long as enough of the neighbors say yes.”

The “neighbors” being referenced are not neighboring surface owners; they are actually fellow mineral owners. And the fact remains that if a mineral owner who owns a very small percentage of the minerals being developed enjoyed veto power to stop drilling, it would infringe on the rights of the majority mineral owners. And even if a mineral owner opposes drilling, they still get compensated if a well is developed, completely debunking SAFE’s notion of “theft of their mineral rights.”

Despite the media coverage so-called “subsurface trespass” has received, it is a complete non-issue in Illinois, and will remain a non-issue moving forward. What is far more relevant is the fact that the industry directly and indirectly employs 14,000 – a vast majority of which reside in Southern Illinois – and more than 30,000 people receive royalty income from Illinois oil production.

SAFE’s agenda has nothing to do with protecting those royalty owners’ rights – it has everything to do with imposing a “Keep It In the Ground” agenda aimed at destroying Illinois’ oil production industry.