PA DNR claiming mineral rights to streambeds that are on their public streambed map

I have land in a unit in Bradford county  operated by Chesapeake.  While waiting for division orders on the unit that started production in Nov. 2014 , i was told that unit's setup by land dept was not completed yet , although unit was filed in 2012. It turns out that the land dept had to take away acreage from my lease to give it to the DCNR for a public streambed i was not even aware I had on my property. The DCNR is claiming these mineral rights on a stream that was designated as a navigable waterway in the 1700's , all the way to its mapped source that is now dried up, This is the South branch Towanda Creek in my case , but local small streams such as the Little Loyalsock in Sullivan County are also on the map. this is the URL  http://www.gis.dcnr.state.pa.us/maps/index.html?publicstreams=true

The DCNR mapping dept has not returned my calls . The local property tax dept verified that I pay property taxes on my total parcel , including the streambed. I didnt get how the gas company was acting on this claim since I had not seen an amended unit filed at courthouse recently changing my parcel. Usually the gas company will change nothing in unit for landowner until its all tied up with a bow and filed at courthouse. 

The county planning dept was not aware of these actions either , but kindly directed me to Rep. Tina Pickett's office .  Finally someone knew what was going on. I did know that the DCNR had been working on leasing the mineral rights under the Susquehnna river , which made a little more sense as a navigable river. But Rep Pickett's aide informed me that they had been getting calls about people losing their mineral rights under tiny little streams designated on the DCNR's map. There is case in court regarding this so the gas company's are taking the land and setting it aside until it is settled .I was also told they... Pickett's office ..cant get involved now that there is an ongoing court case . I did not know that rule  either , seems like just the sort of thing they should be involved in , but no , we just have to wait on the outcome of the case, hmmm ...Does anyone know the specifics of the this case , I have not been able find any , and the Representatives legislative aide Jason Krise (570)265-3124  did not have anymore to tell me about it  ?   here are some links with informative articles on the subject

marcellus drilling news -PA DCNR Program lease

PAWaterBodies.pdf

marcellus drilling new feb 2015

.palandowners.org

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Permalink Reply by John Harrison on May 29, 2015 at 5:54am

I have no land near a stream or river but I have been interested in this issue for a while.  The DCNR website has a list of the leases signed so far.Stream Bed Leases  I have heard rumors that there is a lawsuit but I have never seen a reference to an actual case.  I do not think the location and the name of the case could be a secret.  

A possible silver lining for the landowners who lose some land would be having the state of PA as a lessor in their unit.  The state leases which you can see at the link above have all kinds of provisions for obtaining documentation from the gas companies.  This information should be public since this is public land. I recently asked for and received the royalty statements for the Susquehanna River lease near Wyalusing.  Sadly Chesapeake is giving the state a terribly confusing and patently wrong statement with a unit in Wyalusing missing and a unit from Lycoming County (two counties away) listed.  You would think CHK would try to get it right for the State but apparently they don't care.  I have hopes that the State will wake up and enforce their leases which will help us all.

Permalink Reply by Frank Walker on May 29, 2015 at 6:34am

John good post.  Regarding your penultimate sentence:

It's important to remember that the Chesapeake corporate mind views itself as being much more important and significant than the (to them) lowly Commonwealth of Pennsylvania.  Indeed, as between the two, Chesapeake perceives itself as being prior in the ordo cognoscendi.

0ym9x5ag7ury2Permalink Reply by 0ym9x5ag7ury2 on June 1, 2015 at 10:49am

Say What????

Permalink Reply by Andrea Richlin on May 29, 2015 at 7:48am

Thanks for your post John , your link to the DCNR streambed leases was great. Reviewing the deductions addendums in the contracts the state has is a great asset to anyone leasing , it will be interesting to see if they hold up in court when  deductions are taken .. On the state contract page your link brought me to , there was another link to DCNR policy  . DCNR policy on shale gas and public streambeds  . The department defines the area they own as lying between the ordinary low water marks of the stream. In the link I posted earlier that is titled PAWaterBodies.pdf this is further defined by historical law  in this exerpt:

 Riparian rights for navigable waterways are more complicated, since the public has more rights to use the waters. A property line described by deed calls for a navigable river or stream as a boundary is to be interpreted as following the edge of the water at low water mark. Appeal of York Haven Water & Power Co., 212 Pa. 622, 62 A.97 (1905) "ordinary low water mark, unaffected by drought; that is, the height of the water at ordinary stages."                                                                   

 I think that would require a physical survey of each area the DCNR is claiming a right to by a certified  surveyor at a time of average conditions . Wouldnt that survey also be required to be filed with courthouse recorders office as proof of ownership of the surface and  mineral rights ?  If a  gas company is relying on satellite mapping imagery to determine this area of ownership , it could not possibly hold true to that definition . Furthermore, if the streambed is dried up in average weather conditions there would not even be low water marks to establish the area.

 

Permalink Reply by Doug Duffield on May 29, 2015 at 11:23am

Did you request a face to face meeting with Chesapeake to resolve these issues? I would question the navigability and riparian rights if the streamed in question was dry.

Permalink Reply by Andrea Richlin on May 29, 2015 at 6:18pm

Well Doug ,no I have not , most information from Chesapeake is derived by email and telephone conversations involving the changing spokesman from different Chesapeake locations (whomever is on the payroll at the time)relaying statements from a landman for a specific unit who usually remains anonymous. The concept of a face to face meeting with anyone there seems unrealistic to me at this time , maybe someday that will change.  I also understand that this is part of the title curative process of their legal department when setting up a unit for paying out royalties .Since the DCNR is claiming rights to all navigable waterways in a legal action,a gas company  must set aside those waterways in  escrow , as they would with a finding of dormant gas rights with no known heir. I hope this is the case , the message  finally relayed from landman was simply   "Navigable streams in PA are owned by the Department of Conservation and Natural Resources (DCNR), and we have to account for that acreage when it is included in a unit."   The issue I have is with how they , the gas company ,are arriving at their acreage amount they are deducting from my parcel , when I asked for their map , I was sent the DCNR    map with the imposed stream overlay line running across my parcel.    The other pressing issue to me is whether the DCNR intends to actually lease every little bit of stream that is on their map they created and is in a drilling unit and will they be required to have full legal documentation per tax parcel and deed as a private landowner would ?  It would be a gigantic task to complete , but historically our legal land rights are based on these details being quantifiable . I dont think the interactive computer map the DCNR has produced as a public relations internet tool should be the legal yardstick we rely on. The landscape of our area is covered with a complex web of small streams crossing private property , so where will this PA state government's ridiculous declarations stop at ?

Regarding the drying up of streambed, i found some interesting information. According to my source , Jessica Helman's paper Public and Private Water Rights to PA Waer Bodies, a citing of the Pennsylvania Law Encyclopedia say's " once a body of water is declared navigable, it can never revert back to being non-navigable, even (if) reliction occurs. That is, the process of a water feature drying up, leaving land remaining as a result."  In my opinion, that is great in theory, for classification of its existance , but how can you come up with hard numbers for how big the streambed is from that ?

Permalink Reply by Brian Day on May 30, 2015 at 1:34am

Perhaps the DCNR would refund real estate taxes for the past 200 years in current dollars for the lands they are claiming.  If they don't have the cash to pay back money owed by them to land owners whose families have unknowingly been paying these taxes on land they apparently did not own, then land owners could receive the royalties off of any wells drilled until that debt is paid.  this shouldn't take too long while the wells are fresh.  When the debt is paid, royalties for the stream bed land could go to the state and the land owner would no longer have the tax burden of that acreage  how does that solution sound?  I bet not so great to the DCNR..

Permalink Reply by Andrea Richlin on May 31, 2015 at 6:16am

It just doesnt follow that the DCNR navigable streams policy doesnt follow the same precedent as the public roads and highways do , where the surface land is given back to the private owner after the road is abandoned. Also, we pay the property taxes on the part of parcel where the roads is , but at least we still own the mineral rights under the road. On a big , navigable river the deeds of property along it have it in their deed that the boundary is to the water line. not the case on these properties with little streams running thru them for which the DCNR is claiming mineral rights .The DCNR is making a big assumption here , just throwing bull****  and seeing what sticks to the wall.

Permalink Reply by RichR on June 2, 2015 at 1:34am

Up until recent years highway right of ways were surface easements.  That means that the underlying land belongs to the affected property owner.  The easement restricts what the property owner can or cannot do within that easement area.  In those cases the property normally goes to the centerline of the road.  When the right of way was taken in fact the property goes to the legal right of way line.  In that case there would have been a recorded taking and that area would, or should, be deducted from the taxable land area.

In the early days when land was originally owned by the Commonwealth when land was given out to Revolutionary War Vets, and for what else I don't know, there was a percentage of the land held back for roads.  So in essence the new and subsequent property owners had a certain amount of their property donated for roads.  It all got more technical from there on.

0ym9x5ag7ury2Permalink Reply by 0ym9x5ag7ury2 on June 1, 2015 at 10:51am

Brian,

     SCORE!!!!

0ym9x5ag7ury2Permalink Reply by 0ym9x5ag7ury2 on June 1, 2015 at 10:53am

Permalink Reply by Trapper on May 31, 2015 at 9:40am
My question is, is this just an obstructionist tactic being deployed by our new Socialist "Governor"......

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