The city of Longmont, Colorado – a Boulder bedroom community that’s obviously trying hard to emulate its famously-left-leaning neighbor – is about to get sued by the state for imposing drilling regulations inside city limits that amount to a de-facto ban. I for one will be rooting for the state in this case.
With the split estate — an admittedly-odd system in which surface property rights are severed from subsurface mineral rights — drilling restrictions of the kind imposed by Longmont aren’t just a threat to orderly resource development or a usurpation of state power and authority by local government, allegations that seem to constitute the core of the state’s case. They’re also acts of politically-sanctioned larceny, or theft, aimed at depriving the mineral owners of access to their legally-acquired property. If we dispense with all the legal gobbledygook, this is really just a case of attempted robbery, try as Longmont officials might to gussy it up in fancier garb.
One party, the city, is attempting to deprive a second party (mineral rights owners) of their property, using local regulatory mechanisms to do so. It’s what some people call a “regulatory taking,” which can have the same basic impact on the victim as an eminent domain “taking,” only there’s not even a requirement in this case that the perpetrator pay compensation. That this act of theft is politically-sanctioned or politically popular may seem to lend it legitimacy in some eyes. Not-in-my-back yard types and the politicos who pander to them are good at finding collectivist, feel-good rationales for screwing others out of their property. But let’s not be coy about what’s going on here.
The only way for those doing the thieving to make things right, and legal, is for them to go out and purchase the mineral rights from the rightful owners, so the split estate is unified. Those in the West who decry the alleged injustice of the split estate do have one method available for correcting the problem — they can go out and win the bid when subsurface mineral rights come up for auction, or buy-out the existing mineral rights owner. But that can be expensive and complicated and the mineral owner may not want to sell. So the expedient thing for thieves to do, as they’re doing in Longmont, is to use the levers of local power to conduct a heist, lending a patina of legitimacy to the trampling of property rights.
If the citizens of Longmont want to halt drilling in city limits, fine, but the least they should do is be willing to pay compensation to those whose property they’re stealing. And they ought not to simply pay the victims what the victims paid-out for the right to drill, but also offer reasonable reparations for what the thwarted mineral owners might reasonably have expected as a return on investment. Forcing residents to pay for what they covet would be the honorable and equitable (though much more expensive) way to proceed. But why do the honorable and expensive thing if there’s a low risk, no-cost, only mildly-disreputable shortcut available?
Here’s hoping the state kicks butt in court.