Fence Posts and Wagon Tongues
Published: 06 April 2013
Since the first wagon trails westward by the settlers and the first mineral boom with the gold fields at South Pass, there have been many related impacts on surrounding lands by either energy or development activities.
In the latter days of the Oregon Trail, a family story passed down was where a group was traveling west and spent the night close to the ranch that was right on the trail. Early the next morning, my great-grandfather realized they had cut down a fence post for firewood and left a hole in the fence. He went down and immediately sawed a five-foot section from their wagon tongue to replace the post – both parties were harmed.
Today, if negotiations break down between landowners and energy companies, it is usually the land that is harmed the most in the long run. In a sense, today, we’re still talking fence posts and wagon tongues.
This past legislative session, I enthusiastically supported two bills that passed that dealt with balancing the negotiations. I supported them because they enhanced the balance that we seek between the energy developer, who needs to use the land, and the landowner, who is often an unwilling party to the negotiations because they realize it is hard to get a fair deal. By assuring greater balance, the bills serve to better protect their lands. I urge the Governor to sign both bills.
The first is Senate File 118 – Eminent Domain. This bill strengthens the current requirement that the party condemning, a pipeline company for example, must prove each of three basic elements for the exercise of condemnation: public interest and necessity, a plan and location compatible with the greatest public good and least private harm, and necessity of the property to be acquired. It provides that the case will be dismissed if these standards aren’t met. It also discourages frivolous litigation by providing for reimbursement of landowner litigation expenses if the above elements are not established and provides that the condemner reimburse property owners for reasonable legal expenses if the court determined fair market value is more than 15 percent above the condemner’s final offer.
In the past, if a landowner went to court, they were still out the legal fees, even if they won, so most just agreed to a lower value. The negotiations were lost before they started. This legislation offers an incentive to condemnors to make a sound offer and to landowners to accept that offer. It is a win-win that will result in less litigation.
The other bill we need is Senate File 136 – Seismic Exploration. It directs the Wyoming Oil and Gas Commission (OGC) to establish a minimum split estate bond for seismic activity, based on the acreage to which access is sought and establishes that minimum. It also requires the OGC to ensure that the seismic operator seeking to post a split estate bond has the right to enter the land, either through authorization from the mineral owner or lessee. This bond is not required if both parties have come to an agreement.
Seismic and pipelines and their reclamation have always been the cause of many conflicts. It’s time to fix them as now we have to manage for the worst cases. Good agreements between parties will never encourage litigation.
Let’s get past fence posts and wagon tongues.