The existence of split property rights are just fine. In fact they're our best shot at privatizing control of Federal lands, a way of patenting uses in a manner much the same as discovering a mine. What's unconstitutional in this case is the Feds simply taking mineral rights from the Mars family without just compensation UNLESS the Mars family never purchased those rights on already split estate land.
I’m sure he never purchased them, based on the information given, and the current state of those rights across the West. I think very, very few mineral rights are transferred. With the value of minerals going up, and the discovery of oil at more and more locations (inevitable, as the world is awash in oil) everyone keeps them in the family in hopes of an oil find, and then they lease then one more time to some oil interest.
Dave upthread was right though, the minerals rights can only be leased from the state and not owned by an individual or company.
What Mars is doing is trying to protect his land rights. If the current ‘owner’ of the mineral rights takes the water in the process exercising his mineral rights, Mars is left with land that isn’t any good for grazing.
Someone on another thread about this case talked about the unfairness of someone like Mars with all his money being able to ‘outgun’ the oil interests in court.
I then pointed out that there have been decades of ‘abuse’ by the oil interests in court because, until now, it has been the oil interests with the big money. They’ve now met their match, and there may be a different outcome in court. I hope so. I also hope that someone will find the way to retrieve that oil and gas without disturbing the water.
If he can't prevent the State from drilling on his land, then he doesn't have complete ownership of it.
It's the same reason I object to things like neighborhood covenants. People that didn't pay for your property telling you what you can/cannot do with it, or in this case, extracting wealth from it w/o just compensation.