Planet Earth News: Natural Parks Government Owned Land vs Mineral Rights Owners

MOTHER EARTH NEWS environmental planet earth news briefs focuses on natural parks: while the government owns the land, private entities own the mineral rights and want profits regardless of the damage to the land.
By Tom Turner
September/October 1988
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The big cypress is home to the endangered Florida panther and bald eagle.
PHOTO: FOTOLIA/NAMWAR69


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Environmental planet earth news brief about national parks and mineral rights owners: while the government owns the land, private entities own the mineral rights and want their subterranean profits regardless of the damage to wildlife and the land. 

Environmental Planet Earth News

As REPORTED IN THIS COLUMN almost two years ago, many national wildlife refuges in this country are part of what's known as the "split estate": The government owns the surface; someone else owns what's underneath. This has led to some ugly and awkward situations where the owners of the subsurface insist they have a right to their minerals no matter what damage may be inflicted on the animals and plants that live on the surface. In some cases, that damage has been pretty horrendous.

We recently learned that nearly a hundred units of the national park system have the same problem: Privately owned mineral rights underlie 1.2 million acres of park.

At the Big Cypress National Preserve in Florida, a squabble over the right to explore the extent of reserved minerals recently led to one of the shortest environmental lawsuits on record. It also added impetus to a fledgling movement to split the National Park Service off from the Department of the Interior, for reasons we'll get to presently.

First, the facts.

Big Cypress was set aside as a national preserve in 1974, partly for its historic and environmental significance and partly to as-sure a supply of fresh, clean water to Everglades National Park, which it abuts on the south. It encompasses 570,000 acres, making it bigger than all but 10 other units of the national park system outside Alaska.

The preserve is home to many species, including the desperately endangered Florida panther, the bald eagle and the red-cockaded woodpecker. At least 400 Native American cultural and archaeological sites have been identified there, many of which are considered worthy of listing on the Register of Historic Places.

When the federal government acquired Big Cypress, however, mineral rights beneath 90% of the preserve were left in private hands, most of those hands belonging to various human and corporate descendants of the Collier family that once owned most of south Florida.

In January 1987, Shell Western Exploration and Petroleum, a subsidiary of Shell Oil, asked permission of the park service to explore Big Cypress for oil and gas. The owners of the mineral rights didn't object to the exploration, but they had no agreement with Shell for eventual development of any oil or gas Shell might find; indeed, Shell was under no obligation to reveal the results of its tests to anyone. Should the company discover economic deposits of hydrocarbons and make an offer to the owners of the mineral rights, those owners could turn around and ask another company to do its own survey and possibly top Shell's offer.

The exploration would involve detonating 10,000 charges of dynamite along 85 miles of survey lines crisscrossing the park. That's three blasts every 150 feet on average (shot holes are usually clustered in threes), in holes between six and 27 feet deep. To drill the holes, the company would cut 68 miles of new off-road-vehicle trails through roadless areas in the reserve.

Park service scientists were alarmed at the prospect of this seismic exploration and recommended that an environmental impact study (EIS) be undertaken to try to determine what all the blasting might do to water, resources, endangered species and other features of the preserve. Everyone in the service, up to and including the director, William Penn Mott (who once ran the California state parks system for then-Governor Ronald Reagan), agreed that an EIS was called for.

Enter politics.

Despite the recommendation from the park service, the Interior Department's Assistant Secretary for Fish, Wildlife and Parks—a man named William Horn—ordered the park service not to prepare an environmental impact statement but instead to issue a much more cursory "environmental assessment" (this one ran 17 pages) and what's known in the trade as a "FONSI" (finding of no significant impact). EAs and FONSIs are an agency's way of telling the public it doesn't intend to do an EIS.

The Sierra Club Legal Defense Fund promptly filed suit, asking the court to order the park service to prepare the EIS it really wanted to prepare. Along with formal court papers, attorney Bob Dreher provided the court with this eye-opening memorandum:

To: Director, National Park Service
[William Penn Mott]
From: regional Director, Southeast Region
[Robert Baker]

I want you to know that [Big Cypress] Superintendent [Fred] Fagergren and I appreciate your efforts to convince the Assistant Secretary that the National Park Service [should] undertake an environmental impact statement (EIS) on Shell Oil Company's proposal for seismic exploration in the Big Cypress National Preserve.

As we all agreed during our meeting on Thursday, December 3, it was the prudent professional judgment to undertake the EIS, to explore all implications of the 85 miles of seismic exploration. It is unfortunate that the Assistant Secretary's office did not concur with our position and instructed us to issue the environmental assessment.

What is troublesome is not only that the park service did not have the opportunity to explore all alternatives, i.e., hand-held drilling, feasibility of wider spacing of the holes, etc., but that the decision to go with an environmental assessment, which was a political decision, appears to be the National Park Service's proposal. Certainly the political leadership has the right to override our professional judgments, but I believe there should be a clear record of that decision.

[signed] Bob

Brave fellow, Bob Baker.

Dreher served this memo to Secretary Horn himself, along with other papers he was submitting to the court. Horn reportedly hit the ceiling and threatened a full-scale hunt to find the leaker of the memo, but he eventually calmed down and decided to go quietly. On the eve of the hearing, a lawyer from the Justice Department called Dreher to say that the government was withdrawing its approval of the project and would prepare further environmental analysis, and asked that the hearing be called off. It is not yet clear whether the park service will con. duct the requested environmental impact statement.

It is situations like this one that have led to calls for an independent national park system. Bills to put the park service under a three-person governing board appointed by the President have been introduced in the House (by Bruce Vento of Minnesota) and in the Senate (by Bill Bradley of New Jersey), though no action is expected before Congress breaks for the election. It's an issue to watch over the next few years.

Tom Turner, a writer and editor who's worked in the environmental field for 18 years, is with the Sierra Club Legal Defense Fund, an independent environmental law firm that represents many organizations across the country. It is supported principally by private donations. For more information, write Sierra Club Legal Defense Fund, San Francisco, CA. 


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