Everyone needs to move to Iowa.

 

Happy New Year!

Day 48,  1/1/2014

Topic:  Rules Deprive Property Owners of Their Property Rights Without Notice and Without Compensation  

Comment:

The rules unconstitutionally deprive many property owners of their property without notice and without compensation–thus, without due process of law.

Under Illinois law, a person who owns the full bundle of rights in land owns the surface and all that is below it.  So, when a landowner owns the full bundle of rights in the land, any drilling on, under, or without the landowner’s consent is an illegal trespass and an unconstitutional taking.  Similarly, any access to the surface without the landowner’s consent is a trespass.

The proposed rules would allow a trespass and a deprivation of property without due process of law, more specifically as follows:

  1. The rules not require a permit applicant to show that it has obtained the consent of the owners of the surface on which the vertical well will be drilled.
  2. The rules do not require a permit applicant to show that it has obtained the consent of the owners of the subsurface property through which the horizontal leg of the well will be drilled, nor even require notice to those property owners.
  3. In Section 245.110, DNR’s proposed rules redefine real property rights in a manner inconsistent with current law.  Specifically, the proposed rules would create an entirely new definition–”real property surface interest”–that is inconsistent with Illinois law in at least two respects.  First, even when mineral rights are severed, the surface owner does not typically relinquish all rights in the subsurface.  Second, the new definition narrows the intent of the law because the law uses the term “owner of real property” while the DNR’s new definition excludes any property owner who owns the surface along with the subsurface and also excludes any property owner who owns the surface along with a controlling interest in the subsurface.

Revisions Required:

  1. Delete the definition of “real property surface interest” in Section 245.110.
  2. Revise Section 245.210(A)(16)(A) & (B), on permit-application requirements, to require that the applicant show that it has obtained the consent of all the owners of real property on which, under which, or through which the vertical and horizontal wells are to be drilled.
  3. Revise Section 245.250(a)(1)(A), on public-notice requirements for permit applications, to require that permit applicants personally notify all owners of real property on which, under which, or through which the vertical and horizontal wells are  to be drilled.

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Go there and comment. The last post on Illinois Fracking Rules today.

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