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Interesting article in the Pottsville Mercury

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Online.Game Commission pressed by game land drilling
Published: Sunday, August 15, 2010

The Pennsylvania Game Commission finds itself "inundated" and "upset" by natural gas companies seeking to drill on state games and by the tangle of laws and court rulings that are preventing it from protecting the very wildlife it is charged with defending.

In addition, a PGC official said the agency is not being helped by a state legislature that has yet to pass an industry-wide "severance tax" that would help the purchase land rights to prevent drilling on sensitive habitats.

With 67 percent of its game lands acreage overlaid on Marcellus shale geology, the PGC has had copious inquires from natural-gas drillers on issues pertaining to ownership and procedures.

"We have been inundated with requests, or notifications of interest, for resources under our game lands throughout most of the state," said PGC press secretary Jerry Feaser.

Because drilling activities during last year's deer season had not reached their current level, the PGC believes this is the year that hunters will be harshly impacted by drilling operations - not to mention the wildlife that has been evicted from their habitat.

"There have been a lot of disruptions, a lot of activity," Feaser said. "In some of the northern tier, the landscape has significantly and dramatically changed."

When the PGC bought the majority of its lands before the 1940s, it was unable to purchase mineral rights. Previous industrial concerns held onto the sub-surface deeds.

In other words, though the PGC owns the crust of land, it cannot minimize initial land disruption by those who own the subsurface rights.

"There is law and court precedent on this. We cannot prohibit them from being on that land to access their rights," Feaser said.

Unlike many other states, Pennsylvania has a "topsy-turvy" body of legislation and court rulings that gives more rights to the owners of what lies below the land than to the surface owner.

"In other words, we don't have a lot of say in it," Feaser said. "Where we own the (subsurface) rights we can restrict drilling activity during certain seasons. We can also say -- in addition to the minimum re-vegetation and reclamation work required by DEP -- you will perform certain actions at the completion of the contract.

"However, in the vast majority of cases where we don't own the rights, we don't have that luxury. We can't even stop them from running pipeline over the game lands," Feaser said.

In some cases, the PGC does have a minimum recourse to land disruption, if only after the fact.

"We have some rights. They have to pay us for any trees that are cut and they have to follow DEP regulations regarding re-clamation and re-vegetation," Feaser said.

And the PGC has not been ladling out drilling permits where it does own what lies below.

"On lands we really own the (sub-surface) rights to, we are not really moving forwards on a lot of those. Were we own the rights we are very judicious about that."

Another step the PGC can take in the Marcellus shale situation is the purchasing of the mineral rights when the rights come up for sale. According to Feaser, the board took "an extraordinary step" giving staff the ability to spend up to $500,000 to acquire subsurface assets.

It did this because the agency had found it could not move fast enough when oil and gas rights came up for sale. Feaser said the board gave the staff the flexibility to respond to those situations.

The $500,000 level was based "on some examples where we missed out."

However, Feaser admitted that the PGC cannot "buy many" of the game lands subsurface rights with its current reserves. And the spending of these reserves "could conceivable" break the game commission financially.

Feaser said there are specific game lands the agency does not want to see drilling on because they contain sensitive habitats. But he refrained from citing any particular lands because of possible real estate negotiations

"There are certain things we don't want to discuss at this point publically because we don't want to impact potential negotiations," he noted.

"There are some state game lands we are actually in ligation over right now because we feel we own the rights and somebody else feels they own the rights."

On a practical level, the PGC's network of land managers has been monitoring drilling locations within their districts.

"Our local land managers and regional staff are all over this," Feaser noted. "Where we have shale drilling on state game lands, we visit those sites just about every day. In some areas they are monitoring for water quality. They are (also) looking for any damages, any problems and leaks."

And Feaser said the PGC has no intentions of letting things that it does have control over be neglected.

"Let's be clear, we are doing what we can to protect. But our powers are limited because of the way case law and state law is written that gives) [the power to] those who own the rights to some of these resources."

On the more nebulous legislative level, Feaser said the PGC is actively supporting legislation that would give it more leverage in some drilling instances.

For one, the agency supports a bill that would require surface rights owners to be notified when the assets under their surface come up for sale or auction.

In addition, the agency also favors a severance tax on the drilling companies -- one that would give the PGC a percentage of the tax.

"If we don't receive any revenues … this would continue to weaken our financial position, which is relevant to our ability to protect our game lands."

That bill has been stalled in the legislature for some time.

"'If we had the ability (both legally and with manpower) we would clearly be more involved," Feaser said.

"If you want to get down to the nut of this, are we upset about the fact that we can't control the surface because of what is underground? Yes, we are. It's a great concern to us."
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