DOES THE FEDERAL GOVERNMENT OWN THE PORE SPACE UNDER PRIVATE LANDS IN THE WEST? IMPLICATIONS OF THE STOCK-RAISING HOMESTEAD ACT OF 1916 FOR GEOLOGIC STORAGE OF CARBON DIOXIDE

摘要

This Article establishes that pursuant to the mineral reservation contained in the Stock-Raising Homestead Act of 1916 (SRHA), as well as U.S. Supreme Court jurisprudence that has further defined the scope of that reservation, the federal government likely holds title to some 70 million acres of subsurface pore space located under private land in the West. In addressing the issue of pore space ownership, scholars and regulators have focused on the question of who owns the pore space when the mineral estate has been severed from the surface estate. This approach, however, overlooks the critical fact that for the approximately 70 million acres of land patented under the SRHA, the United States government held the original fee simple absolute, and conveyed the land while retaining "all the coal and other minerals in the lands." In 1983 in Watt v. Western Nuclear, Inc., the Supreme Court delineated a four-part test for determining if something falls within the scope of the SRHA's mineral reservation-a test that was further explicated by the Court's decision in 2004 in BedRoc Limited, Inc. v. United States. This Article analyzes this jurisprudence vis-a-vis the question of whether or not pore space falls within the scope of the SRHA's mineral reservation. Based on a detailed analysis of the history of the SRHA and relevant jurisprudence by the Supreme Court and other federal and state courts, we conclude that the federal government likely owns the pore space for those lands patented under the SRHA. This conclusion has far reaching policy implications. For instance, states that have statutorily determined that ownership of the pore space is vested in the surface owner are now confronted by the prospect that these statutes are preempted by federal law when dealing with land originally conveyed by the SRHA. Moreover, given the significant acreage covered by the SRHA, federal ownership of pore space could arguably reduce the transaction costs associated with project development, thereby facilitating the rapid scaling of commercial geologic carbon storage projects.