Northern Plains believes that farmers and ranchers are stewards of the land, and that corporations should not be allowed to run roughshod over landowners.
Landowners and eminent domain
Northern Plains has long worked to help landowners protect themselves from the abuse of eminent domain for private development projects. In 2000, we published a report on the experiences of 18 Montana families who faced condemnation of their land from projects with questionable public benefits. In the 2001 legislature, we were able to secure passage of four bills aimed at improving the rights of landowners facing condemnation.
In 2009, Northern Plains began working with landowners whose farms and ranches lie in the path of the proposed Keystone XL Pipeline, a project that will carry tar sands bitumen from Alberta to Texas for refining. The original proposal for the pipeline requested that the Canadian company behind the project requested a waiver that would allow the company to use thinner gauge steel for the pipe in relation to the pressure in areas of “low consequence,” that is, rural areas. In 2009-10, Northern Plains organized the Northern Plains Pipeline Landowners Group to help affected landowners learn more about the likely impacts of the project and to negotiate as a bloc when the pipeline company sought to cross their lands.
Landowners for 131 miles in the Tongue River Valley face the prospect of condemnation if the Tongue River Railroad is ever built to service coal mines at Otter Creek and in Wyoming.
Landowners and mineral development
For a Montana landowner who lives above fossil fuel resources, there’s a very good chance someone else owns the mineral rights. It may be the federal government, it may be the state, or it may be a private party. If a landowner has a split-estate interest in his or her property, the right of the surface owner is superseded by the rights of the mineral owner.
When Northern Plains worked for passage of the federal strip mine law in the 1970s (Surface Mining Control and Reclamation Act), we worked especially hard to include a provision for “surface owner consent,” which gives surface owners the right to keep coal mining off their property.
However, when other minerals or mineral owners are involved, an individual landowner doesn’t have this kind of protection. That’s why Northern Plains has tried to provide information to landowners – through printed materials and public programs – to help property owners be more certain of their rights and how to assert them.
Landowner water rights
Northern Plains is working to:
- Prevent Montana’s water resources from being wasted;
- Make sure the rights of existing water rights holders aren’t usurped by energy companies;
- Uphold the principles of prior appropriation and beneficial use that have conserved and allocated precious water resources in the West for well over a century;
- Hold state agencies accountable for preserving Montana’s water for future generations.
Coal bed methane development will significantly drop aquifer levels, drying up landowners’ wells. Although Fidelity Exploration and Production Company, a Denver-based oil and gas firm, is required to drill new wells for the landowners, those new wells would have a junior water right to Fidelity’s water right. Thus, landowners would lose their status as senior water right holders. Under the Montana Water Use Act, a new water right permit cannot adversely affect the water rights of a senior water right holder. If the Montana Department of Natural Resources and Conservation (DNRC) granted Fidelity’s water right applications, it would set a precedent that could threaten the rights of senior water right holders throughout the state.
In 2006, Northern Plains challenged a petition to the state of Montana by Fidelity, which sought to acquire water rights to more than 6,800 acre-feet of water annually (including a proposal to market 3,000 acre-feet per year out of state).
Approving the petition would serve to undermine the principles of beneficial use and prior appropriation. It would also inoculate the industry from liability for damages they cause by dewatering aquifers which are used by water rights holders.
In 2007, Northern Plains gained a partial victory in our administrative challenge to Fidelity’s water rights application when a hearings examiner for DNRC (1) forbade the out-of-state marketing of methane discharge waters, and (2) ruled that any water right associated with methane development ended when the development itself ended.
However, he did grant Fidelity a water right to market water, as long as it didn’t leave the state. This would still usurp senior water rights holders whose wells would be impacted by methane drilling, effectively taking away their legal rights to defend their water right in court. Northern Plains filed a legal challenge to Fidelity’s water right in state court.
In 2008, we won our state court case to protect water rights from Fidelity’s attempts to secure water rights without having a legitimate beneficial use for that water. The state district court decision overruled the DNRC’s 2007 awarding of the water right.
In 2009’s legislative session, two bills were introduced that aimed to overturn the state court decision on water rights, One of those bills was killed in committee. The second was passed by the Legislature, but was vetoed by Governor Schweitzer.
However, Northern Plains anticipates additional attacks on water rights law by an industry that will remove increasing amounts of water from our aquifers in the years ahead.
How you can help:
We can provide you with information about the challenges faced by landowners who live in the path of energy development projects, and how you can help improve landowners’ ability to protect their property rights. Northern Plains can help you be heard in the legislature as we try to improve the position of landowners who have an energy company at their gate.
We have also developed examples of documents that can help directly affected landowners to negotiate agreements that help protect their property.