Surface rights, mineral rights, Appalachian Mountains, and knowing your rights

Like many Daytonians, my family is from Appalachia. I wasn’t born in Kentucky but my mother’s family was. My dad’s family is from Portsmouth, OH, their old home is on Front St, right on the Ohio River, overlooking Kentucky. I guess it’s in my blood, I don’t know, but Kentucky always feels like home to me; those breathtaking hills and the gentle manner of the residents reminds me of many trips with my Grannie to visit aunts and uncles and distant cousins. I remember Uncle Al in particular, mainly because of the seemingly treacherous trip up a dirt road to the hollow (of course, I know it best as a “holler”) with scrappy chickens running around the front yard. All of us Dayton cousins made that trip with Grannie Rose at least once in our lives- I went the most because I love a drive. I loved listening to my granny tell her stories, and, as I said, I love Kentucky.

Last night I watched Ashley Judd at the National Press Club talk about her home- Kentucky- and the Appalachian Mountains she loves so much. They are being decimated. They’ve been mined, abused, exploited, for generations, but now they are being destroyed by Mountaintop Removal method of mining. Basically, a company comes in and blows the top off a mountain, scoops out the coal, and leaves.

After Grannie died, I didn’t go to Kentucky very often, but two years ago I went with my husband on a business trip. We took back roads as much as possible. The landscape has been changed. Mountaintop removal is… I don’t have words. Judd describes it as rape, and I think that’s about right. It’s a planned, purposeful, and violent assault on a mountain. It’s also devastating to a uniquely American way of life that is often derided, exploited, or just ignored, in turn. Who really cares about some hillbillies in Kentucky, West Virginia, or Tennessee, right?

I rarely use this space as a soapbox, and this is a complex issue, but Judd brought up some interesting points about mineral rights during her presentation and I wanted to share the idea of mineral rights with you. It’s something we rarely think of with typical real estate and home sales in Dayton Ohio, but it’s important to have at least some idea of what they are. (Insert disclaimer here: I’m not a lawyer, and I don’t play one on TV. For any specific questions about minerals rights, please contact your attorney).

From the website, Geology.com:

In most countries of the world all mineral resources belong to the government. This includes all valuable rocks, minerals, oil or gas found on or within the Earth. Organizations or individuals in those countries can not legally extract and sell any mineral commodity without first obtaining an authorization from the government.

In the United States and a few other countries, ownership of mineral resources was originally granted to the individuals or organizations that owned the surface. These property owners had both “surface rights” and “mineral rights”. This complete private ownership is known as a “fee simple estate”.

Fee simple is the most basic type of ownership. The owner controls the surface, the subsurface and the air above a property. The owner also has the freedom to sell, lease, gift or bequest these rights individually or entirely to others.

If we go back in time to the days before drilling and mining, real estate transactions were fee simple transfers. However, once commercial mineral production became possible, the ways in which people own property became much more complex. Today, the leases, sales, gifts and bequests of the past have produced a landscape where multiple people or companies have a partial ownership of or rights to many real estate parcels.

Most states have laws the govern the transfer of mineral rights from one owner to another. They also have laws that govern mining and drilling activity. These laws vary from one state to another. If you are considering a mineral rights transaction or have concerns about mineral extraction near your property it is essential to understand the laws of your state. If you do not understand these laws you should get advice from an attorney who can explain how they apply to your situation.

The first two paragraphs speak to the idea of private ownership of land, and how extraordinary it is that we live in a country that protects an individuals right to complete ownership of not just the surface of the land, but the minerals, air, water, above and below that land. Of course, the government can decide the use of the air over your home would make a great flight line for the local airport, and I once read that the residents of Phoenix, AZ are forbidden from collecting rain water that runs off their own roofs, so precious is water to Phoenicians that they desperately need every bit of runoff for the city aquifers. Is the rain water yours if it’s on your land? Your rights might be subservient to the rights of the common good.

Water rights, or riparian rights, are complex as well. I helped a couple purchase a large parcel of land in Greene County, bordered in part by Caesar’s Creek (not Caesar’s Creek Lake, but the creek). Before they purchased the land, they wanted to know what their riparian rights were: Could they use the creek for recreation? For fishing? Could they build a dock, a pier, or a small bridge? Could they use it for irrigation? How would that effect those downstream? What if they built a dam? They needed some education, and they needed to find a source for legal information about their rights to use the creek.

When you buy land, property, a home, you may have the rights to everything that property has to offer- seen and unseen. The ramifications of this are something you need to know. Judd describes how mining companies purchase the mineral rights from Appalachians for pennies- literally pennies, leaving the residents with surface rights. The Appalachians did not know better, and didn’t have the means to find out more about their own rights, but now you know, and you need to know so you understand how important this idea is.

I missed the first half of Judd’s presentation but after I wrote this post I found this quote from her:

“I am here to tell you, mountaintop removal coal mining simply would not happen in any other mountain range in the United States.  It is utterly inconceivable that the Smokies would be blasted, the Rockies razed, the Sierra Nevadas flattened, that bombs the equivalent to Hiroshima would be detonated every single week for three decades.  The fact that the Appalachians are the Appalachians makes this environmental genocide possible and permissible.”

If you are one of the many many Daytonians who have this rich blood running through your veins, you know what she’s talking about. Educating ourselves about all our rights promotes the end of exploitation of any citizen.

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