C|M|LAW and Levin College of Urban Affairs Professor Heidi Gorovitz Robertson posted “Mandatory pooling and unitization protect landowner rights too,” in Crain’s Cleveland Business’ Energy Report, on June 20, 2014.
In this post, Robertson writes that as a property professor, she was initially intrigued (read: alarmed!) by the very idea that a state agency, the Ohio Department of Natural Resources, could decide that a landowner had no choice but to have drilling occur horizontally under his or her land. The agency’s powers of mandatory pooling and unitization allow this. That sounded like an obvious violation of one of property law’s most sacred, although limited, rights — the right to exclude non-owners from your land. Traditional property law principles also dictate that when you own land, one of the rights that comes with that ownership, with some limited exceptions, is the right to decide how the land is used. But in Ohio — and in most other states, too — a state agency can override an individual landowner’s decision to exclude a driller. They can only do it certain circumstances, but it sounded like a complete contravention of the right to exclude others from one’s property. It also sounded like a violation of landowners’ right to use property as they choose — here, the right not to have it drilled.
The point of Robertson’s post is to show that the state’s use of its mandatory pooling and unitization authority, although it appears to violate the property rights of some landowners — those who wish to prevent drilling from occurring beneath their land, supports the “right to use” held by neighboring landowners who do wish to have the mineral rights beneath their land developed. The reason for this lies in state and best practices-imposed spacing and acreage requirements for drilling sites. Assuming most landowners who control mineral rights to an area do want their land drilled, without the state’s mandatory pooling and unitization authority, one dissenting landowner could prevent the others from using their land as they choose– because without their land, an area would be too small or misshapen to be productive. Both of these concepts, although they apply in different circumstances, protect the correlative rights of the landowners (or mineral rights holders) who want to develop the resource. They favor the right of some landowners to develop their land or mineral rights over the rights of others not to develop their own.
Professor Robertson’s post is available here.