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Mineral Eminence

One of the peculiarities of American law is that mineral rights tend to trump everything else. Basically, if somebody owns the mineral rights under your property, good luck keeping them off, as many owners of split estate surface rights have learned.

One irony is that this is not what some of the original court decisions favored. In a California Supreme Court decision in Biddle Boggs vs. Merced Mining Company, Justice Stephen Field (who would later be the longest serving member of the U.S. Supreme Court) wrote

There is something shocking to all our ideas of the rights of property in the proposition that one man may invade the possessions of another, dig up his fields and gardens, cut down his timber and occupy his land, under the pretense that he has reason to believe there is gold under the surface, or if existing, that he wishes to extract and remove it.

And with this, the court found that the surface rights prevented miners from entering John Fremont’s Mariposa Estate to seek and extract gold. (Only later did the courts decide that Fremont owned the gold under terms of his patent). But later decisions eventually upended this, giving the owner of mineral rights the opportunity–indeed, the right–to invade a surface right holder’s land to get at their minerals.

The result of the upper hand mineral rights holders have had has been that oil and gas developers have forced themselves on individuals and communities that are not welcoming their presence. Here in Colorado that has led to efforts from communities to ban development–efforts that have foundered on the supremacy of state law. So now the effort is to impose state-level restrictions on oil and gas development that would probably prevent development in nearly any city or town but would also restrict it in more rural areas where the rights are not split and the person occupying the house near the oil well is the one receiving the royalty checks every month.  The fight over this issue has led the oil and gas community to advance their own proposed amendment, one that would cripple everything from zoning laws to fire codes to noise ordinances. Just how this approach by both sides will play out remains to be seen, but it is clear that strong battle lines are drawn and there will be unintended casualties.

An alternative GG has never seen advanced is to use the eminent domain power of government to intervene in mineral development when it is contrary to the public interest. Eminent domain is not itself uncontroversial–while mainly used to do things like build a road, it has also been used to condemn an area to make way for new shopping centers, and so it is the bane of libertarians. But it is a well-known and well-established power in the U.S.  So why not use it for retiring mineral rights?

The first and most obvious answer is that the cost is too high. Most communities, and especially those with lower income residents, wouldn’t be able to afford the rights.  But maybe this isn’t as clear-cut as it seems. First, it isn’t the value of the oil or gas, it is the net value that should matter.  When it costs millions of dollars to sink holes in the ground, the return is relatively meager.  So meager, in fact, that many financial people are now viewing the oil and gas industry as one threatening to drown in red ink. When the federal government is getting about $450/acre for oil and gas leases, it would seem that the price of shutting down an oil play in a town could be pretty doable.

The second reservation may well be that eminent domain is limited to surface rights.  GG is not a land law attorney and so has no idea. But it might not be hard to change state law to allow it if indeed you can’t do it today.

A third reservation is that this wouldn’t stop imminent drilling. But that in fact can be stopped by municipal action–drillers have face moratoria as local governments have tried to settle on requirements regarding drilling in floodplains, near schools, etc. Simply putting a moratorium in place until an eminent domain purchase is concluded or denied would seem to be in line with current Colorado law.

In a sense the City of Longmont has kind of pursued this already, swapping rights in the city for income from rights the city holds elsewhere. As this included shutting down existing wells, it is a bit harder to relate to the question of using eminent domain, but the $3M price tag would seem to be higher than what would result from precluding drilling rather than shutting down existing and proposed wells.

Odds are that the current scorched earth approaches both sides are taking will be rejected by voters.  Coloradans are unlikely to want to so greatly eliminate the ability of rural residents from cashing in on their good fortune, but they are also unlikely to approve of making it impossible for their city or town government from enforcing such basic rules as zoning laws or noise ordinances. Perhaps after the dust has settled interest will shift to other means of addressing the legitimate concerns of drilling neighbors.

Oily Pasts and Futures (book review)

Politics and industry make strange bedfellows.  Politics is often short-sighted, with most politicians locked in to the next election, or even the next round of polls, but multifaceted.  Industry, on the other hand, can look over longer timespans but is narrowly focused (“can” is not always “does”). You might hope that the pair could produce public policy that was both broad and longterm, but the reality seems to combine the worst characteristics of each.

Nowhere is this more evident than in peering into the future of oil. Mason Inman’s recent biography of M. King Hubbert, The Oracle of Oil (Amazon link), provides a nice reminder of this interaction from an earlier time. Hubbert’s views on oil, which were made with an eye towards a fully sustainable economy, conflicted with corporate and political motives. Corporations are in a specific business and like to hear that their future is bright, a disastrous approach when the future is changing (see Eastman Kodak’s fall as digital photography bankrupted their film business). Thus there is a tendency within a company to both develop rosy forecasts and believe them (the more pessimistic will tend to leave).  Politicians want happy news about tomorrow–Cassandras don’t tend to get elected. So what happens when unhappy predictions are made?

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Signs of Mineral King

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A SkiCooper trail sign.

Well, it’s January and ski season is in high gear in North America, halfway between the Christmas and Presidents Weekend high water marks for ski areas.  So many of you have seen lots of signs like those above. The irony is that these symbols, now so universal, were developed for a ski area that never was.

In 1964, the nascent National Ski Areas Association (NSAA) decided to try to make relatively uniform sign markers for skiers in North America. European ski areas had simply used colors; the new USA system would add shapes to the colors (which has obvious advantages for color blind skiers and for monochrome signage). But they committed a bit of a faux pas: the US intermediate color was used in Europe for out of bounds areas.

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As this system was being promoted, Walt Disney Corp. was working on ski areas, largely because Walt had decided after the 1960 Olympics in Squaw Valley that he’d like his own ski area. Disney settled on Mineral King Valley, which set up a lengthy legal and political battle, but as part of the work being done for that development, Disney Corp. studied what would be the best signage to use. They were perhaps more sensitive to this given their experiences getting people around Disneyland.  Their studies suggested that circles were the softest shape and most suitable for easy slopes, followed by the squares and then diamonds. The NSAA saw their work and adopted it, pitching their own system aside.

Disney was never able to use their system at their own resort.

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Disney and his Mineral King area. Via SAMLAND blog, micechat.com 

As is discussed more thoroughly many other places (including GG’s own Mountains that Remade America), first the Park Service (that had to approve a realigned road) dragged its feet, and then the Sierra Club chose to oppose the development. Toss in the additional requirement of an Environmental Impact Statement, the death of Disney shortly after holding a news conference in Mineral King, a change in political representation and a general shift in the public from favoring development to favoring preservation¹ and the eventual death of the ski area proposal becomes clear.

Anyways, those signs (er, and the Country Bears Jamboree) are among the most lasting reminders of the Mineral King debacle. The influence of Disney’s work on skiing symbols even evolved into a warning system for something a bit more hazardous: volcanoes. Although the USGS was blocked for awhile after a volcano advisory in Mammoth Lakes misfired, because communication with local officials and, later, the public became necessary, the Long Valley USGS group used these now-familiar symbols for awhile (1997-2006):

So while Disney loyalists to this day pine for the ski area that never was, they can console themselves (a little) in seeing these reminders on any North American slope they care to visit.

¹ for instance, during this time Denver went from seeking the 1976 Winter Olympics to refusing to host them, largely over financial concerns but also because of environmental objections.

Memory Loss

As we all get older, we find it harder to remember things from the past (or names or words).  The same thing seems to be true of nations and their leaders–well, at least America (seems like some other nations cannot forget any slight). So as the generation that grew up in the Depression and fought WWII passes from this earth, we are left with a nation that has not known true economic devastation either from unbridled capitalism, as in the 1930s, or devastation from war, as US GIs witnessed in Europe. The result seems to be a delight in saber-rattling and glorifying the military at the expense of diplomacy and alliance-building, an unbending desire to remove all regulations, whether good or ill, from the private sector. It is easy to imagine plunging into some of the worst mistakes of the twentieth century by following such a course.

There are, perhaps, two cures.  One is to study history–not the hagiography of a noble nation that saves the world from tyranny, but to recognize the success and the failures.  To understand how the Marshall Plan worked when the League of Nations didn’t. To see the folly in restoring the French to Indochina after WWII and the Shah to the throne in Iran even as Nixon going to China and Reagan reaching an arms accord with the Soviet Union lessened world tensions. To really recognize the tremendous losses the Russian peoples suffered in WWII, which dwarfed the devastation even to the occupied Low Countries and France. To see Lincoln’s greatness as a war leader even as he failed to deal with atrocities against Native Americans. Even to discover that James Buchanan, whose South-favoring administration made the Civil War a near-certainty, gaining a backbone and choosing not to cede federal installations to states that seceded before Lincoln’s inauguration.

The other might well be cinema and perhaps television. Saving Private Ryan and Schindler’s List and Sophie’s Choice*, to name three WWII movies, bring home some of the horror of war in ways that books might fail. Watching these and similar movies is a far different experience than the anodyne violence of video games and some other media.  With many Americans becoming more isolated from members of the military who have experienced combat and suffered from it, the need for some kind of emotional reset is more necessary. Given too that modern wartime devastation is distant from the main tourist destinations, we need to viscerally understand the cost of war before bumbling into it. Americans should recall that the deaths in the destruction of the World Trade Center in 2001 were only about one tenth of the number of deaths on an average day during WWII.

War needs to be a last resort; regulations should not simply be a bad word. Those now leaving us learned these lessons the hard way so we wouldn’t have do.  Will we take advantage of their wisdom?

*well, OK, so two of these could also be understood as lessons in situations when the horror of war is justified.

Did Trump Just Jumpstart National Park Discussions?

Much of the environmental and conservation community is furious over the reduction in size of several national monuments (not to mention archaeologists and paleontologists). Right now they are directing their fury into the courts, but given that a couple of Presidents had already reduced the size of some national monuments without controversy or opposition, one can question the likely success of that attack (and potentially its wisdom, as Congress might decide to revise the Antiquities Act to strip a President of the ability to act so broadly in the first place).

The President’s actions here expose a heresy that both advocates for and opponents of parks and monuments like to conveniently forget when rallying their troops: these lands are not protected forever.  They are only protected until elected government chooses to change its mind.

Take Yosemite Valley, which was passed to California in 1864 to preserve it “inalienable…for all time”.  Arguably this was the single most ironclad act of preservation in American history. To remove that protection required an act of the California Legislature, an act of Congress and the President’s signature. That these restrictions were nearly removed suggests how tenuous legislative protection can be (California did pass such an act, overriding the Governor’s veto, and the House of Representatives passed the equivalent act–it was the Senate that denied passing Yosemite Valley land titles to Hutchings and Lamon). Arguably Yosemite Valley became less protected when passed back to the federal government in 1906.

Or take Yosemite National Park (the federally-run one established in 1890). It originally included the Ritter Range and Devil’s Postpile, but these were removed from the park in legislation passed 15 years later. (The Postpile was then preserved in 1911 by the creation of Devils Postpile National Monument, but it would take the creation in 1964 of the Minarets Wilderness (now expanded and renamed the Ansel Adams Wilderness) to protect the Ritter Range).

Creation of national parks has largely stalled out. Every decade of the twentieth century save the 1950s saw at least 3 parks created; only four have been made this century, and only one small park (Pinnacles) was designated this decade. So maybe the time has come to revisit parks instead of monuments.

The lesson? The more layers you can wrap around protection, the less likely it is to be reversed. Having worked to make the case to Presidents Clinton and Obama to protect some of these places, monument advocates might be advised to carry those same arguments to Congress and seek park status for them. After all, they are still monuments, and as the promotion of Death Valley and Grand Canyon from monument to park was accompanied by an even larger footprint, so might creation of parks from these monuments restore some of the lands worthy of protection. These are harder fights: advocates have to convince half of the House and Senate these lands are worthy instead of just one President. But maybe this is the better path forward for the longterm stability of protection….

Parks Rank?

National parks are the best idea we ever had. Absolutely American, absolutely democratic, they reflect us at our best rather than our worst.-Wallace Stegner, 1983

National parks don’t crack the top ten of America’s best ideas.Alan Spears, NPCA

With proposals to hike the admission price to the most popular parks, we are getting a number of turns off of the Stegner quote (like the New York Times’s “Parks of the 1 Percent”). So maybe it would be good to think about this a bit.

Stegner’s over the top characterization of national parks has always seemed a reach (does it really beat out “all men are created equal”? free public schools?), but Spears’s deliberately provocative counter kind of misses the mark too. Spears says there are lots of other better ideas and then cites the 13th and 14th amendments, Civil Rights Act and some other legislative milestones.  But those were not the ideas–those were repair jobs on the imperfectly executed big idea put forth in the Declaration of Independence. So maybe his downgrading of the parks as a big idea was too severe.

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Take me back to Ahwahnee…

A curious op-ed in the New York Times on Yosemite.  Curious because it points in one direction for a long time before suddenly screeching to a stop and pointing in another. Leveraging off of the controversy over Confederate monuments and the renaming of some park facilities necessary during a court battle, Daniel Duane recounts the sad history of Native Americans in California in general and in the valley in particular. Readers can anticipate the point: we should abandon the Euro-Americanisms in the park and revert to names the Ahwahneechee used. And indeed he reaches this point only to ask the descendants and relatives of these people what should be done.  Their recommendation: get federal recognition for the tribe and cut back on visitation. “Renaming, [Bill Leonard, a descendent of Tenaya] said, ‘is not going to make us feel any better or more important — the reality is, most of us could care less what they call things.'” You get the feeling Duane was asked by some reader or editor to ask these people about their views (much as interviews with descendants of slaves and Confederate generals have appeared) and was given an answer kind of at odds with the thrust of the piece, which he dutifully tacked on.

Anyways, the summary of injustices is fair (Duane fortunately relies on a couple of pretty appropriate references) and something more Americans should be aware of. But he kind of lets the Park Service off the hook, hiding their role behind more generic labels of “park officials” and the “federal government.” Pre-1906 management of the valley by the state allowed the Ahwahneechee to stay in the valley, and while demands for inappropriate “Indian” shows and their menial position in Yosemite Park contrasts with what should have been their place as owners and proprietors of the valley, they were at least considered to be legitimate residents of the place. Federal management systematically marginalized and removed Native Americans; that management was, after 1916, the Park Service. There is something disturbing to most Americans to realize that one of the most highly thought-of groups of public servants did in fact behave in such a manner. And it is distressing to many who call the national parks “America’s Greatest Idea” to recognize that it was prefaced on the exclusion of the peoples who had been there first.

Duane also takes a hesitant slap at John Muir, and here GG asks a bit of forgiveness for delving a bit deeper.   Read More…