The Art of Obstruction

The Art of Obstruction

A new art project uses the legal system of mineral rights as a means to block oil and gas extraction.

An oil field crew drills a fracking well near Crescent, Oklahoma. (J Pat Carter/Getty Images)

A few years ago, the artist Eliza Evans inherited three acres of worthless land in Creek County, Oklahoma, that her great-grandfather had purchased as an investment when he moved there in 1910 to open a hardware store. She didn’t think about it much until she received letters from representatives of oil and gas companies. They were interested in buying or leasing the property’s mineral rights, which would entitle the companies to extract anything of value from underneath the land. The companies were most likely looking to secure the rights to frack natural gas or oil.

Evans had no interest in helping to set up another hydraulic fracturing well, much less profiting off of it. She considers herself an environmentalist—her sculptures often explore themes of land and the natural world—but her opposition to fracking is also based on personal experience. Before her art career, she worked as an economic sociologist and was hired by Texas State Technical College to research how the natural gas industry influenced the South Texas economy. The people she interviewed—public officials, neighbors, even people who thought the oil and gas industry was generally good for the state—believed that fracking had destroyed their communities. Trucks hauling wastewater and gravel ruined the roads. People quit jobs to work the oil fields—and lost those gigs once the wells were up and running. Fracking “broke everything,” Evans told me in an interview. “It broke the schools. It broke the police, electricity, water, air quality. To them, they lost their community forever, and it would never be able to be repaired.”

When Evans first received letters of interest from oil and gas agents in 2019, she figured that she could simply refuse to lease her mineral rights, and that would be that. “I naively thought I own property, therefore I have property rights, and I can say no. But I was disabused of that [idea] very quickly.”

Evans discovered that most states, Oklahoma included, have forced-pooling laws that allow companies to drill for oil or natural gas once they have an agreement with a majority of the mineral rights owners within a drilling unit—usually 640 acres, or one square mile. Designed to prevent landowners from holding out for higher prices or blocking extractive projects for personal reasons, the laws are based, in part, on the notion that mineral rights supersede surface rights. A person or a company is entitled to access the minerals they’ve bought or leased, even if it means drilling through someone else’s land.

Evans threw herself into researching mineral rights acquisitions in the fall of 2019 and found a weak spot in the forced-pooling legislation. Before a company can consolidate unwilling mineral rights owners into a pool, they must contact them and try to negotiate an agreement. This gave Evans an idea for a mischievous project that is both conceptual art and environmental protest: she would subdivide her mineral rights into tiny shares and give them away to as many people as possible. If a natural gas company wanted to lease the rights under her three acres, they would have to track down and contact hundreds of people and negotiate for their fractional shares. She called the project All the Way to Hell because, during her research, she came across the legal concept that property rights in the United States stretch ad coelum, to the heavens, and ad inferos, down to hell.

In the fall of 2020, she bought the domain allthewaytohell.com and launched a website on which people can volunteer to take part in the project and receive a fractional interest in the mineral rights. Emblazoned with a graphic logo featuring the silhouette of an oil well perched atop what looks like a round bomb, the site includes information about Evans, the project, and a simple form for volunteers to fill in. So far, over 350 people have signed up.

 

The legal doctrine that the person who owns a plot of land also owns everything underneath it is almost entirely unique to the United States. It was established in fits and starts as the country expanded westward, expropriating Native American land and transforming it into private property for settlers. The Homestead Act of 1862, designed to entice homesteaders to cultivate land in the West, specifically granted mineral rights to new owners as an extra incentive. Subsequent laws and court rulings reaffirmed the sanctity of private mineral ownership, the legal foundation on which most of the U.S. oil and gas industry functions.

Private mineral ownership is also, however, the cause of a major headache for oil and gas companies: fractionalization. As generations pass them on, mineral rights become more and more divided, creating more and more owners for the companies to locate and negotiate with. This problem is compounded when mineral rights are detached from surface properties and sold or given away. Speculators can buy shares in plots as investments; property owners can sell land and retain the mineral rights. (In Oklahoma, as in most states, a property owner is not required to inform buyers that they are keeping the mineral rights when selling the land.) Severed mineral rights are traded, subdivided, sold, and inherited so often that people may not realize they own tiny fractional interests until oil and gas companies come knocking.

As a result, a great deal of modern-day oil and gas exploration involves digging through family histories and property titles to puzzle out ownership. (During our interview, Evans joked that the oil and gas industry might have founded Ancestry.com in an effort to trace mineral rights ownership.) This work is carried out by landmen (the job title irrespective of gender), who figure out who owns the mineral rights, track them down, and negotiate to buy or lease the rights. Often landmen don’t even know which company they’re working for, acting as opaque intermediaries between firms and landowners. Fractionalization is one of the industry’s greatest obstacles, and Evans homed in on that. “What I’m doing,” she told me, “is taking the problem they already have and pushing it off a cliff.”

 

Evans started to look for a lawyer to help her with the project in the summer of 2020. She asked people she had met in Texas for referrals and cold-called names off the internet, without much luck. Lawyers in Oklahoma were loath to take on a case against the oil and gas industry. On a whim, she called a fancy law firm in Tulsa and was surprised when her call went through to one of the senior partners. When he burst out laughing after she explained her idea, she knew she was on the right track. He couldn’t take on her project because his firm had oil and gas clients, but he put her in touch with a lawyer who would. Originally, Evans had planned to sell the interests in her mineral rights for a nominal fee to cover the costs of the project, but the lawyer told her that she couldn’t do that, because mineral rights are considered securities, like stocks and collateralized debt and to sell them you must be licensed by the SEC. (Oil and gas companies are conveniently exempt from this requirement in Oklahoma.) She could, however, give people the fractional interests, so she set up a limited liability corporation—All the Way to Hell LLC—to distribute the shares when between 500 and 1,000 people have signed up. Evans plans to create certificates and mail them to the participants to symbolize their ownership of the mineral rights. Even though they aren’t gaining any physical property, a few have contacted her with whimsical questions, such as if they can camp or raise turnips on their tiny fraction of land.

To finalize the project, Evans will consolidate the names of the participants onto a single deed, pay a $25 fee, and file the paperwork at the county courthouse. There the deed will sit—until landmen come snooping around and stumble on it. “The hope is that they are going to just walk away,” Evans said. But that is not guaranteed. A landman could still maneuver around the project by securing the consent of enough neighbors to force Evans’s mineral rights into a pool and set up a well site anyway. Her project would then become an annoyance instead of an obstacle: the oil and gas company would have to send tiny royalty checks to hundreds of people every financial quarter for the lifetime of the well.

 

Whether landmen are willing to work around Evans’s project will depend on the ebb and flow of the Oklahoma oil and gas industry and the potential value of the mineral rights. Boom-and-bust cycles have reigned ever since oil was first commercially drilled in what was then the Oklahoma Territory in 1897. By the 1930s, Oklahoma was producing more oil than any other state. The oil flowed through the next decades, but as foreign production increased and the reserves of easily drilled oil dried up, the industry declined in the 1980s. The rise of hydraulic fracturing in the 2000s (which corresponded with an increase in the price per barrel of oil) brought another boom to the fields of Oklahoma, as companies were able to extract previously inaccessible oil and natural gas.

The near-term outlook of U.S. oil and gas production is uncertain. Right before the coronavirus outbreak, a trade dispute between Russia and Saudi Arabia pushed the price of oil down, cutting into the profits of American shale companies, who were barely breaking even to begin with. COVID-19 restrictions drove demand for oil so low that the cost per barrel for American crude dropped below zero for the first time in history, and several fracking companies went belly up. But with an end to the pandemic in sight and demand growing, the price of oil will certainly tick back up, likely along with investment in new fracking wells. The oil and gas industry plays the long game, planning for extraction years ahead, driven by the profits to be made and undaunted by the evident damage fossil fuels wreak on the environment and on local communities.

 

Evans hopes her project will do more than inhibit fracking around her property in Oklahoma; she wants to make visible the hidden world of mineral rights, and especially their role in climate change. Her project highlights the fact that decisions about fossil fuel extraction—which bear grave consequences for all life on this planet—lie in the hands of a few mineral rights owners. By asking people to own a piece of this usually invisible and unthought of property, she is asking them to connect with the profound responsibility of owning minerals in the earth.

In the summer of 2020, Evans presented elements of her project as part of a group art show in New York called ecofeminism(s), which explored the connections between feminist art and the natural world. The show included the works of a range of female artists, from a vintage Barbara Kruger exhibition catalog to a colorful neon sign by Andrea Bowers that reads “Climate Change is Real.” Evans’s contribution was a framed mineral deed and several core samples from the Permian Basin. She plans to create more sculptural work for All the Way to Hell and tour the country with a series of events and artist talks once it is possible to do so again.

The distribution of the fractionalized shares is not only a piece of complex participatory conceptual art in the mode of Gordon Matta-Clark and Hans Haacke; it is also a clever piece of legal monkey-wrenching. It builds on experiments in environmental activism that use the tools of legal bureaucracy against companies profiting from fossil fuels. For example, in 2008, climate activist Tim DeChristopher posed as a bidder at a Bureau of Land Management auction in Utah, eventually winning the rights to 22,500 acres of mineral rights. When it was discovered that he had made the bids in protest and had no intention of paying, he was arrested and sentenced to two years in prison.

Of course, compared to the scale of the oil and gas industry, Evans’s project is minuscule, but she hopes it can spread. “You do it once,” Evans told me, “and it’s a pesky little art project. You do it a few more times, and it becomes more concerning.” She imagines the project evolving into a collection of strategies to stymie fossil fuel extraction. Landowners could either deed their mineral rights to her LLC to be distributed to hundreds of people or simply use All the Way to Hell as a blueprint to fractionalize the mineral rights on their own. One day, Evans hopes to sell the property in Oklahoma and use that modest income to secure more mineral rights. Meanwhile, environmental groups with resources could acquire large swathes of mineral rights and lock them up like a land trust, forming collectively owned bulwarks against the relentless march of fossil fuel extraction.

The project is more experiment than anything else—Evans calls it a “beta test”—and it has several potential shortcomings. It relies on a legal system that defers to the interests of business, and Evans might have to defend its legality in court against well-funded industry lawyers, in front of judges elected in a state where oil and gas extraction is still very popular. She will also have to carefully monitor any attempts by fossil fuel companies or their landmen to maneuver around her bureaucratic roadblock. Moreover, the wager that the rights of private ownership can counterbalance the power of the oil and gas industry creates a paradox at the center of her project. Its success depends on the very abstractions she is critiquing: the disembodied nature of mineral rights ownership and its racist and colonial origins. But untangling the historical, legal, and philosophical knots of this system may be too much to ask of a single environmental art project, especially one focused on obstructing fossil fuel extraction within the context of an impending climate catastrophe.

Ultimately, the way the work illuminates the arcane and hidden world of fossil fuel rights and exploration is valuable, whether Evans’s project succeeds or not. Much of the environmental struggles of the past decades have taken place on the surface of the earth—the fight against cutting old-growth forests or building new natural gas pipelines, for example. Evans’s project helps viewers conceptualize the space beneath the surface as a legal arena in which to contest oil and gas extraction, and it reminds us that the destructive work of the fossil fuel companies also takes place in courthouses and county archives. With a little ingenuity and imagination, it is as possible to fight them there as anywhere else.


Michael McCanne is a writer in New York.


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