Reading Our Beacon Journal

An article in today’s Akron Beacon Journal highlights the multi-layered structure of conflicts (political struggle).  You can read the entire article at the link.  Here is a selection of text with my comments in italics.

Steve Neeley did not want to get involved in Utica shale drilling.

He had invested heavily in building a country estate on 9½ acres off Pontius Road in the southwest corner of Portage County. He was concerned about hydraulic fracturing, or fracking, and wanted nothing to do with it.

The 57-year-old Neeley was repeatedly approached by Chesapeake Exploration LLC, part of Chesapeake Energy Corp., to lease his land. The company offered a signing bonus of $1,200 per acre plus 12½ percent royalty of natural gas and liquids from the well. He repeatedly refused.

Then, in late 2011, Neeley and 23 neighbors who also had rejected the company’s lease offers were forced to take part in Utica shale drilling under a little-known and seldom-used provision of Ohio law called “unitization.”

With approval from the Ohio Department of Natural Resources, Chesapeake was allowed to include 24 unwilling landowners in the large drilling unit — an area of land under which the company can extract resources — even though the owners had not signed leases granting rights to the minerals below……

The article then provides more detail, including statements from the key disputants in this conflict.  And continues, using a sub-heading to accurately describe this as a ‘conflict of rights.’  This is an important category of conflicts in a rule of law system.  The rule of law marks the boundary between barbarism and civilization (in part) by creating individual rights (property rights being the most important). 

These rights—as seen in this story—are a way to try to define concretely what we mean by abstract concepts like ‘limited government’ (or individual rights) but we continue to constantly negotiate and renegotiate the location and meaning of these boundaries (as we must in a rule of law system) and that is one of the core foundation conflicts BEHIND what initially appears to be a simply conflict between a landowner and a drilling company. 

This is an important aspect of conflict management (and politics as conflict management) to understand:  presenting conflicts (the tips of the iceberg conflicts that are what we initially focus on as being what is important) are often ‘decided’ on the basis of who has already ‘won’ deeper, more fundamental conflicts about process or principle, jurisdiction or standing, including meta-conflicts:  that is, arguments over what the argument ought to be about…

Conflict of rights

Critics say the law effectively allows government to take something of value from private property owners and give it to for-profit companies.

But the ODNR and the industry say unitization is needed to prevent a minority of landowners from blocking their neighbors’ right to develop mineral rights…….

And after providing more detail, the story later reveals yet another layer to this conflict, another deeper (usually hidden) aspect to this conflict…

Chesapeake’s request is “reasonably necessary” — the key state standard — to boost access and increase production from the tract, ODNR wrote. Approval will allow “a greater ultimate recovery of [product] and is protective of correlative rights,” the agency wrote.

Appeal rejected……

Here we see that the presenting, tip of the iceberg, conflict (the one that ordinary folks initially consider to be the actual conflict) is a disagreement within negotiations for drilling rights on private property. 

Behind this, however, is a deeper conflict over how to regulate property (and balance regulatory rights/powers with property rights/limited government), in this case on whether ‘unitization’ is a legal way to do this or not, and beneath that over the state standard of ‘reasonably necessary.’ 

This legal test is sometimes called minimum or moderate scrutiny, and is yet another layer of conflict over how actively courts should intervene in conflicts like these.  Should courts rigorously scrutinize  the substance of a law (more likely to strike down laws) or only scrutinize to ensure that the law was passed with the proper procedures (far less likely to strike down this, or any, law)?

This meta-conflict over legal standards permeates nearly all aspects of the law and grew out of property cases from the founding of the republic and then out of equal protection jurisprudence as well. 

The farmers in this story…can be thought of as one-shotters (ie, not routine participants in the court system) only interested in seeing that their decision not to sign a lease is respected. 

But they have not been in this (courtroom) game for decades, playing for rule changes (playing for rule changes is a strategic option only available to those who are not one-shotters, but are repeat-players in the court system) to develop a body of precedent designed to support legislation like ‘unitization,’ that will (in this case) erase the farmer’s property rights.