Gopher: Pioneer of Split Estate

It must have been the gopher that inspired the split estate law in the West. If you ever tried to plant a garden anywhere there are gophers, they eat it out from under you…literally. That’s what the split estate law [a combination of the Stock Raising Homestead Act of 1916 (SHRA) and the Mineral Leasing Act of 1920 (MLA)] has wrought. Today, an oil and gas company can lease the land under your garden and “drill, baby, drill” until your well, health, and property values are ruined beyond repair. Unlike the gopher, legally, the mineral leaser’s interests trump your surface rights. You can try to trap, poison, drown, or otherwise dispose of the gopher, but you can’t touch the driller.
“The business of America is business,” said President Calvin Coolidge in the 1920’s not long after the two acts mentioned above were passed. It has been business as usual ever since. That peculiar expression of hubris that resulted in the Great Depression was revived by the Masters of the Universe on Wall Street in the last decade and resulted in the Great Recession of 2007-9. But to many a capitalist the bubble and bust cycle of business is just natural, not something to fix. There are always winners and losers, so why worry about crashes and bankruptcy: they are all part of the market system that always self-corrects.
A lot of these true believers in the market-as-God also believe in property-as-God. They like to trace their arguments to the concept of natural rights. John Locke was one of the first “modern” thinkers to come up with a threesome of them: life, liberty, and property. According to Locke, men are born with certain natural rights that no government can ever take away. Since the founding fathers of the United States, taking Locke’s lead, came up with three of their own (life, liberty, and the pursuit of happiness) this idea of natural rights has had a legacy here in the USA. What makes them “natural” as opposed to legal remains debatable, unless, of course, you see them as the equivalent of appendages or body organs as in everyone has a natural right to a liver and liberty.
What’s interesting is that the Locke natural right of property got left out of the founding fathers’ list. In its place the concept of the pursuit of happiness was added. Maybe property got left behind in 1776 because America promised so much available land at the time that the founding fathers believed land would never be an issue. Or maybe they were worried the Indians would realize that they also could “own” property and hold the founding fathers accountable for large scale confiscation of their lands. In any case, property was not highlighted as a natural (inalienable) right in the Declaration of Independence.
However, as the West was being settled thanks to the Gold Rush of 1849 and Manifest Destiny, the religious thrust behind further confiscation of land by Anglos, as well as the Industrial Revolution and the waves of immigrants that came to America starting in the 1840’s, the U.S. Government eventually came up with not only a property right but a “two fer” lease: the split estate. Maybe politicians began to feel that property was something to pay more attention to because not only did industry need more resources and ranchers more land, men were being forced by law to share political power with women the same year that the Minerals Leasing Act was passed (Women’s Suffrage, 1920). MLA passage may be just a coincidence or it may have been a way of placating the men-folk who were eager to have some kind of compensation for their loss.
The split estate seemed like a good idea at the time, just as slavery or denying women the vote seemed like good ideas at an earlier time. There was so much land out west it never occurred to the power brokers in Washington that surface use and sub-surface use could ever come in conflict. Today, now that we are beginning to see the greater interconnectedness of life through ecology, the idea of split estate is obsolete. No knowledgeable person could go along with the continuation of such a law knowing what we now know. Ecology is the thrust behind the abolition movement of the 21st Century. Sooner or later, justice and rightness will prevail. The split-estate law will be abolished, and the idea that mineral rights can take precedence over surface rights will go the way of the Fugitive Slave Act of 1850. It is not only ecologically insane; it is morally wrong.
How can it possibly be morally wrong?
I hear a lot of talk coming from the conservative camp that the national deficit is the greatest threat to the prosperity of future generations of Americans. It is not the GREATEST threat. The greatest threat is environmental degradation by current high-impact, low-cost, expedient mining and drilling practices as well as excessive hydrocarbon use throughout the United States and the planet as a whole. Water quality, air quality, and fertile land quality are far more critical than our need for hydrocarbons. Moreover, if hydrocarbons are so important a finite resource, we should be preserving as much as we can for use by future generations. You cannot argue about the threat of national debt, a reversible liability, and ignore the conservation of resources if you are concerned for future generations. It simply does not make sense. The present generations should turn to alternative, sustainable, non-hydrocarbon sources of energy now so that future generations won’t have to use energy to cool the planet.
Meanwhile, I think I’ll go out to the garden and try to figure out how I can get rid of those gophers that keep undermining my organic dream.