I applaud state senator Emily Stonington's (D-Bozeman) Senate Bill 240. The bill would have required methane-drilling companies to seriously consider the impact of their activities on the owners of surface rights. Her bill implicitly recognizes the importance of property rights and illustrates their evolutionary nature.

Clear and enforceable property rights subject to the rule of law, not political influence, are essential to environmental protection and justice. Property rights can protect the individual from powerful interests. Only if these rights are clear, well defined, enforceable, and transferable do they foster peace and justice. The intractable problems involving migratory fish and wildlife demonstrate the burdens imposed by unclear or contested rights.

The powerful can exploit those lacking clear rights. Property rights allow the poor to own the land they work and the structures they build. These assets provide collateral for improvements. Without such rights, Third World poverty persists. Their absence explains the crass exploitation of Native Americans. Our most sordid recent examples are found in the pre–civil rights South and the maltreatment of illegal aliens.

The importance of property rights to civil society, to justice, and to well-being is universal. They restrain the avarice of the powerful. Ownership includes the right to exclude other people's trespass and waste. With clear property rights, people can prevent others from imposing costs on them. That is the key issue underlying methane drilling.

Here's a local methane example. Consider my friend Ed, who owns a very nice home up Bridger Canyon. He is a Yale graduate in economics and math with a law degree from the University of Chicago, one of the nations' top law schools. He is a senior partner in one of America's most respected law firms. He teaches at the University of Chicago and has been senior attorney in billion-dollar cases. In sum, he isn't a chump who is easily rolled over, but rather one of those best qualified to defend his rights.

Despite his qualifications, experience, and serious efforts, he was unable to discover who owns the mineral rights to his Bridger Canyon land. These subsurface property rights are murky at best. This is a historical artifact reflecting the mining companies' early domination of our institutions. It is a sorry state indeed, one that demands clarification.

It's important to understand that property rights evolve over time. For example, when whites initially settled the Great Plains, there was far more land than could be used by a few settlers. Indians had no recognized, enforceable property rights to the land. As more cattlemen, sheepherders, and farmers arrived in the late nineteenth and early twentieth centuries, land value increased. Thus it became worthwhile to define and enforce clear property rights. Stock growers' associations evolved to define and enforce rights to stock and range.

In general, property rights develop in response to increased value. Rights usually evolve when there is a net benefit to defining and defending them. As the land in Bozeman Pass and Bridger Canyon has increased in value by orders of magnitude, people have huge incentives to protect it.

Today's problem is the result of the split estate of mineral vs. surface rights. The owner of the surface rights (e.g., a homeowner, rancher, etc.) may or may not own the subsurface rights. The owner of the mineral rights has access to the land above them and can do what's expedient to explore for, access, and extract the underlying gas, coal, or minerals.

The system developed when most mining operations were modest and land had little value. But today's large-scale operations can cause huge damage to the owners of dream houses and the land they sit on.

Traditionally, the mining and drilling industries held concentrated political power. Owners of surface rights were poorly organized and gave little thought to subsurface resources. Clear, well-defined rights to the subsurface did not evolve.

Stonington's bill would be an important corrective to a serious problem and a logical step in the evolution of property rights. It would also demonstrate how property rights defend environmental quality and thwart injustice. Our founders' vision was to create a society with incentives to create value, not gain by plunder. Clear property rights are necessary to realize this noble goal.