Access to Mineral Lands in Colorado
| Publication year | 1982 |
| Pages | 870 |
| Citation | Vol. 11 No. 4 Pg. 870 |
1982, April, Pg. 870. Access to Mineral Lands in Colorado
Access to mineral lands in Colorado is of escalating interest and concern to landowners, energy companies and lawyers. Basic issues regarding the respective rights of surface owners and mineral lessees remain unsettled despite various legislative and judicial forays into the area. This article discusses the present quandary to inform the practitioner of the status of the law in the area.
When most of the Western United States was public land and most, if not all, of the minerals were also in the public domain, access to such minerals was guaranteed. The Mining Law of 1872 established access,(fn1) as did a solicitor's opinion expanding upon the law, which states: "The genesis and history of the Mining Laws make it clear that Congress intended to give the miner free access to minerals in the public lands and to leave him free to mine and remove them without charge."(fn2)
To encourage settlement of the public lands, Congress passed acts which, while allowing surface entry, reserved some or all of the minerals to the United States. The Act of 1909 reserved only coal, as did the Act of 1910.(fn3) The Act of 1914 reserved oil, gas, phosphate and like minerals.(fn4) The Stock Raising Homestead Act of 1916,(fn5) the vehicle by which major portions of Colorado were settled, reserved all minerals to the United States.
Over the decades, what had been a simple matter became a complex one: public lands were patented to homesteaders who planted crops, fed livestock and built homes. Languishing beneath private agricultural and domestic uses, federal minerals remained entirely federal, severed in use, in fact and in philosophy from the surface estate.
In like manner, private entrants who had obtained both mineral and surface title began selling or trading surface estates and reserving severed minerals as a speculative stake in the future. It is probable that neither the legislators who enacted statutes which secured public ownership of some or all minerals in the public domain nor the private grantors who held fast to severed mineral estates realized their prospective value. Nonetheless, the result of our ancestors' foresight or lack thereof is a hodgepodge of ownership.
Black's Law Dictionary defines property as that "which belongs exclusively to one; in the strict legal sense, an aggregate of rights which are guaranteed and protected by the Government." As to the rights appurtenant either to ownership or lease of severed minerals or to overlying surface, there are in fact few, if any, guarantees and protections.
Problems of access to minerals arise both when the surface is severed and when it is not. However, it is usually the ownership of the surface which dictates the kind of problems which an entrant
faces. In Colorado, the possibilities of ownership are: federal surface estate;(fn6) state surface estate; and private surface estate. The only commonality among the three is the well-established doctrine of law that the mineral estate is deemed to be the dominant estate, and the surface estate the servient one. In other words, in the ultimate analysis, the mineral interests are supposed to prevail when a conflict arises.
Two statutory schemes, the Mining Law of 1872 and the Mineral Leasing Act of 1920,(fn7) governed rights of way onto public lands for mining purposes. The Federal Land Policy Management Act ("FLPMA"),(fn8) passed in 1976, superseded these two acts. FLPMA covers the granting of all rights of way, other than pipeline rights of way and the implied rights of access which continue to be available to claimants and locators whose mineral rights were vested under the previous mining laws. Even the implied rights of access may be falling prey to the influence of FLPMA. In State of Utah v. Andrus,(fn9) the court applied the policies of FLPMA to an application for right of way made by a mining claimant on the theory that the access had not been formalized prior to the passage of FLPMA.
The policies inherent in FLPMA reflect such interests as protecting other lawful users and protecting the public interest. The recently promulgated regulations(fn10) contain a mandate to avoid adverse impact on the natural resources of the adjacent owners, consider use conflicts, and authorize approval only when competing uses are balanced.
Thus, it is clear that access to minerals on public land is no longer absolutely guaranteed. The Andrus case seriously entertains the possibility that access to a mineral lease by air, rather than by surface access, could well be the logical extension of the present law.
The issue of concurrent state and local authority to regulate development of and access to mineral properties on federal land was posed in the case of Ventura County v. Gulf Oil Corp.(fn11) Ventura County sought to require a federal oil and gas lessee to obtain an open space use permit in compliance with local zoning ordinances before proceeding to explore for and extract minerals from its lease. The lease covered federal surface and federal minerals, and the lessee had already obtained permits from all requisite federal regulatory bodies. The Ninth...
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