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Drilling and Laying Pipe on Public Lands

As West Virginia becomes more and more saturated with oil and gas expansion, be it drilling wells or laying pipeline, the issues surrounding the business also become more prevalent. Water and air pollution, road damage, worker injuries; the list goes on and on. The topic of today’s blog may be one issue that is not on that list of commonly recognized problems surrounding the industry: land use. The state of West Virginia is currently looking into allowing drilling leases and pipelines on West Virginia state property, and also plans to allow three large pipelines to cross national forest land on their way east.[1]

First, it is important to understand the way in which public lands are managed. Beaches, streams, state and national forests and various other types of property are in a special category of property in this country. These types of property are held in what is known as “public trust”. The public trust doctrine, in short, stands for the idea that these types of resources are available for the general public’s reasonable use while federal and state governments maintain ownership.[2] Essentially, these lands are managed by the government, with taxpayer dollars, for the benefit of everyone. One critical piece of legislation that greatly expanded these public lands was the Weeks Act of 1911.[3]

More specifically, the Weeks Act allowed the federal government to purchase land to be maintained as national forest in the eastern United States. Put another way, the Weeks Act allowed the federal government to use U.S. tax dollars to purchase private land, convert it to public land, and allow access to these resources to the public at large. In theory, this idea is great. Without government intervention, it is likely that the timber and extraction industries of the early 1900’s would have procured this land, extracted the resources, and left nothing but barren land behind. Instead, the Weeks Act made this land public property to be used for the benefit of everyone. This is where the issues arise with laying pipeline and drilling wells in national forests.

First, you have the issue of restricted use. When extraction industries show up to lay pipeline and construct well pads, it would seem that the land being used is no longer available to the public. How can you, the hunter, fisherman, or birdwatcher go into the forest and use the land as it was intended if there is a giant drilling derrick being constructed right next to your tree stand? Furthermore, how will these companies gain access to their newly constructed drilling rigs? Well, in short, they will cut roads in order to gain access to where they want to be. This further restricts the access you have to these “public lands.”

Equally concerning is the issue of money involved with these projects. When extraction companies show up to work on private land, the land owner is paid for every inch of property used or disturbed throughout the process. When the companies begin work in national forests, this same money will be paid. It will be paid to secure access via roads, to lay pipeline, and to build drilling sights. But to whom will this money be paid? The federal government? Wait a minute. Let’s get this straight. The federal and state governments used tax payer dollars to procure land for the public use. When drilling companies arrive, the public use of that land will certainly be diminished, and the federal government will receive money from these projects that ultimately belongs to the public. This seems contrary to the public trust doctrine.

Ultimately, as is often the case, big industry has a huge say in the goings-on in this state. The idea of allowing these companies access to national forests flies directly in the face of the public trust doctrine and the Weeks Act. This blog is a brief overview of the issue and relevant legal principles. The idea is to inform you the people of this great state about these issues so that, if you feel so inclined, you may take action to protect your rights as tax paying citizen of West Virginia. As is often alluded to in these blogs, being proactive and voicing your opinion is the cornerstone of a democratic system. Without concerned citizens, democracy fails.

[1] http://www.publicnewsservice.org/2014-12-03/energy-policy/gas-industrys-spread-onto-wv-public-lands-raises-concerns/a43203-1

[2] http://joomla.wildlife.org/index.php?id=171&option=com_content&task=view

[3] https://www.plymouth.edu/gallery/weeks-act/116/the-weeks-act-of-1911/