Twenty-five years ago, my father handed me an envelope filled with documents. As he passed it to me, he said, “Now you’re in charge of the mineral rights.”
Before my father, the envelope had been entrusted to my Uncle Peter, who, in turn, had received it from my grandmother. The contents represented everything our branch of the family possessed relating to mineral rights bequeathed by my grandmother’s great-grandfather, Jonathan Thorne.
Jonathan’s estate plan reflected remarkable foresight. He instructed his executor to sell his land at a discount so he could retain the ownership of the oil, gas, and minerals beneath it for future generations. Each deed that went to the buyers of these properties included a clause showing they were purchasing only the surface property, and not the mineral rights.
My father handed me that envelope in 2001, seven years before the Marcellus Shale boom. This is not a story with a happy ending about families passing down a legacy from hardworking forebears. Instead, it is something every Pennsylvanian should be shocked by and want to stop.
We discovered that an out-of-state entity was making claims to our rights. It claimed to have purchased tens of thousands of acres of Pennsylvania mineral rights in 2000 for a total of $1. Their unwarranted claim was based on a distorted interpretation of a legal theory called “title washing.”
Others, including the Proctor family, faced a strikingly similar predicament: They had retained their valuable mineral rights and followed the law, only to find that other groups were now claiming them.
Like my family, the Proctors traced their ownership back generations. After preserving their mineral rights, most of their surface property ended up with the Pennsylvania Game Commission. The Game Commission knew through its own deeds and title research that it was buying only the surface. The mineral rights remained separate. Yet, 100 years after the fact, they sued the Proctors to try to take those rights — twice.
The Game Commission, coincidentally, from rights it does own, is already one of the largest developers of shale gas in the state. It has a reserve balance of $500 million from drilling revenue. That is quite a war chest to sue families for the rights it doesn’t own.
Last year, however, the Pennsylvania Supreme Court unanimously ruled in the Proctor family’s favor, confirming that they continued to own their mineral rights, even noting that the scheme “if not positively fraudulent, is at any rate an attempt to evade the law, to which the courts will lend no countenance.”
That should have been the end of the story for all our families.
Instead, Pennsylvania lawmakers quietly inserted a provision into an unrelated property tax bill that retroactively changed the law and effectively overturned the court’s decision. Late in the evening of Saturday, July 11, an amendment changing pre-1947 tax laws was introduced in the Senate. It passed the legislature and was quickly signed into law by Gov. Josh Shapiro the very next day.
Stunningly, there were no hearings or opportunities for affected families to speak out. Pennsylvania taxpayers (and much of the legislature) had little opportunity to understand what the amendment even meant and what was at stake.
Now the only way to assure rightful ownership is to go back to court and fight again, not only over property rights that were already settled, but also over whether a government can retroactively change laws to benefit certain parties and take property the Supreme Court had already ruled belongs to families like mine.
That is deeply troubling.
The Proctor family spent more than 10 years in litigation and won. Yet, lawmakers, the governor, and certain oil and gas interests decided that wasn’t the outcome they wanted. The Game Commission, in close coordination with those energy firms, started this fight. It lost. Families like ours should not have to spend the next 10 years relitigating.
The General Assembly can undo this harm. It can reverse this retroactive change to tax laws and ensure these properties are not taken from families who have owned them for generations. If not, we are all targets of this wrongheaded move. If they are willing to rewrite property laws to effect transfers to the state, no one’s property is safe.
What happened to my family is, I believe, unconstitutional. The litigation created by this secretive 24-hour rapid legislation approval process could end up costing Pennsylvania more than $1 billion if it is forced to reimburse families for property taken from them. That’s also not fair to state taxpayers.
Pennsylvania can do better. We can protect resources, support responsible energy development, and safeguard public lands without sacrificing the basic principle that private property rights mean something.
Jeff Sloan is a member of the Thorne family and lives in Berwyn.
