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Experts tell Montana committee geothermal ownership law is murky; legislative clarity urged
Summary
A University law professor told Montana27s Energy and Technology Interim Committee that state law across the U.S. is inconsistent about who owns geothermal 'heat' and urged policymakers to pick either an open-access permit system or a public-ownership-permit model to encourage investment while protecting neighboring property interests.
A law professor and researcher told the Energy and Technology Interim Committee on Jan. 26 that legal ownership of geothermal resources is inconsistent across the United States, creating a barrier to private investment in Montana.
"When you extract the resource, there's potential for impacts on neighboring properties," Professor Gabriel Eckstein told the committee during a presentation on geothermal property rights. He said thermal energy is non-corporeal — you cannot "touch" heat the way you can oil or coal — and that courts and statutes have reached different conclusions about whether ownership attaches to surface owners, mineral owners or to the state.
Eckstein outlined two practical policy approaches that could reduce legal uncertainty: either treat geothermal as an unowned common-pool resource managed through permits and a right-to-use regime, or adopt a public-ownership approach that issues limited-duration extraction rights to private operators. "Either an open access, non-ownership approach or a public-ownership approach with permits" can balance stewardship and private investment, he said.
Committee members repeatedly pressed Eckstein on the consequences of split estates and asked which states provide usable models. Eckstein pointed to California, Nevada and Idaho as farther along, and said New Mexico, Texas and Utah also have regulatory activity to study. On split-estate questions, he said the key is whether geothermal is explicitly treated as a mineral estate in statute; where statutes are silent, courts may decline to treat geothermal as part of the mineral estate.
Public commenters told the committee clearer statutory and regulatory frameworks would attract industry. Bridal VanWert said any movement toward clarity in Montana27s statutory and permitting environment "will help to immediately invite significant investment to our state."
Representative Perry, Vice Chair Edwards and other members asked whether Montana needed a detailed statute before exploratory drilling begins. Eckstein offered timelines for exploration steps: surface and subsurface geology work typically takes 18 to 30 months and drilling to confirm a reservoir about 16 to 24 months, meaning a project can mature in roughly 3235 years if financing and permitting are aligned.
The committee voted to direct staff and relevant agencies to compile existing statutes and regulatory steps and report back at the next meeting. Vice Chair Edwards was asked to lead agency outreach. The motion passed without objection.
What happens next: committee members, agency staff and stakeholders said they will collect existing state statutes and agency rules to identify gaps and convene an interagency discussion on regulatory design options for geothermal development.
