CHAPTER 10 RIGHTS OF ACCESS OVER SPECIAL CATEGORY LANDS

• Jurisdiction: United States

Rights of Access and Surface Use
(Nov 1984)
CHAPTER 10
RIGHTS OF ACCESS OVER SPECIAL CATEGORY LANDS
Constance K. Lundberg
Associate Professor of Law Brigham Young University
Provo, Utah

November, 1984

There are a number of classifications of federal land that pose special problems for the mineral developer that have been the subject of limited litigation to date and therefore remain potential but not yet completely defined problems. Access to and through these areas will vary from one case to another. Limitations on access may be statutory, regulatory, or administrative. Because these lands are limited in present acreage and because many are of recent creation this discussion will be generally limited to a description of the type of area and the nature of the restrictions or potential restrictions encountered. Generally these areas can be considered intermediate protection areas — lying somewhere between normal multiple use lands and wilderness lands.

The special category lands that have been identified are:

1. National forest system lands, administered under the statutes governing forest lands.

2. Alaska Lands, lands administered under the Alaska National Interest Lands Conservation Act.

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3. National park system lands, administered under the statutes governing park lands.

4. Coastal zone lands, administered under the Coastal Zone Management Act.

5. Wild and scenic rivers, administered variously under the Wild and Scenic Rivers Act, the National Parks Act, the Wilderness Act, the statutes governing the national wildlife refuge system, or the statutes governing forest lands.

6. National trails, administered under the National Trails System Act and various general land management statutes.

7. The national wildlife refuge system, administered under a variety of statutes.

8. Critical habitat of endangered species, administered under the Endangered Species Act.

NATIONAL FOREST SYSTEM

Rights-of-way on national forest system lands have been addressed in papers 7 and 8, on "Federal Rights-of-Way After FLPMA" and "Rights-of-Way for Miners After FLPMA" and are therefore not addressed in this paper. Neither does this paper address provisions relating to primitive areas or wilderness study areas. Those are addressed by the Forest Service as part of its wilderness regulations, which will be discussed in paper 11 on "Rights of Access over Wilderness Lands."¹

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Other national forest management legislation contains provisions affecting access to national forest lands and to inholdings in national forest lands. These provisions of the Forest Service Organic Act of 1897 and the Alaska National Interest Lands Conservation Act directly affect access to mineral properties.

1. Rights to Access for Mining Operations.

The Organic Act provides, in part, that:

[Nothing herein shall] prohibit any person from entering upon such national forests for all proper and lawful purposes, including that of prospecting, locating, and developing the mineral resources thereof. Such persons must comply with the rules and regulations covering such national forests.²

The Forest Service has adopted regulations implementing this provision. The regulations directly recognize the right of access of mineral developers and owners. They do include access routes and methods among mineral activities to be permitted by the Service and state that the Forest Service will impose "conditions necessary to protect the environment and forest surface resources."³

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2. Forest Service stipulations for special use permits.

In addition to rights-of-way and mine plan approvals, the Forest Service grants special use permits. While usually used for ski resorts and other recreational facilities,⁴ special use permits are also available as a way for a private party to secure access to and use of forest system lands where there is no statutory right to such access or use.⁵ It has been the experience of the author that the Forest Service will readily discuss issuance of a special use permit to a prospective developer of forest lands while simultaneously resisting any claim of right of the developer to use or access. The Forest Service regulations provide for rights-of-way to be granted in conjunction with special use permits.⁶ The Forest Service Manual clearly contemplates that special use permits may be issued to mineral developers.⁷

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Forest Service preference for special use permits is understandable. The Service maintains a much greater degree of control over the activities of the private party at the time of issuance and subsequently.⁸ Permits are annual or for a specified term, usually 20 years or less with a possibility of renewal.⁹ They can be used for any "commercial uses or industrial uses which are necessary to a community and which render economic or social benefits to the community."¹⁰

Fees are charged for special use permits, "commensurate with the value of the use."¹¹ Special use permits were used by the Forest Service to grant certain rights-of-way before the new regulations were issued.¹² These provisions may be pre-empted by

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new BLM regulations for rights-of-way.¹³ The Forest Service Manual still lists general industrial and commercial uses as appropriate for special use permits. Potential users of forest lands should follow any new implementation of right-of-way regulations and special use permits to see if this avenue still remains open.

ALASKA NATIONAL INTEREST LANDS CONSERVATION ACT.

The most notorious section of the Alaska National Interest Lands Conservation Act (ANILCA) is § 1110¹⁴ which provides:

(b) Notwithstanding any other provisions of this Act or other law, in any case in which State owned or privately owned land, including subsurface rights of such owners underlying public lands, or a valid mining claim or other valid occupancy is within or is effectively surrounded by one or more conservation system units, national recreation areas, national conservation areas, or those public lands designated as wilderness study, the State or private owner or occupier shall be given by the Secretary such rights as may be necessary to assure adequate and feasible access for economic and other purposes to the concerned land by such State or private owner or occupier and their successors in interest. Such rights shall be subject to reasonable regulations issued by the Secretary to protect the natural and other values of such lands.¹⁵

The Court of Appeals for the Ninth Circuit interpreted this language in Montana Wilderness Association v. United States

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Forest Service.¹⁶ The court held that the language in ANILCA did apply to all national forest system lands in the United States — not just those in Alaska.¹⁷ The court did not reach the question of applicability of the section to other lands. By implication, however, ANILCA seems to grant an implied easement in all national forests, and national recreation areas. Applicability of the section to national conservation lands and public lands designated for wilderness study may be limited to those lands in Alaska since ANILCA specifically defines those terms.¹⁸

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ANILCA contains specific rights-of-way provisions for lands governed by its terms. Subchapter IV provides for transportation and utility systems in and across, and access into, conservation systems units.¹⁹ The statute rests on a Congressional finding of a need for transportation and utility systems in a presently undeveloped Alaska, and the need for the orderly and environmentally sound development of such systems.²⁰ The Act provides for the permitting of every conceivable transportation or utility system except spaceports.²¹ It provides for one-stop permitting from Interior, Agriculture, and Transportation, including a single application, a single environmental impact statement, and a single review procedure. Unfortunately it does not provide for one approval — each agency has separate approval/disapproval authority. There are statutory deadlines for completion of agency analyses and reviews. Since they can be extended unilaterally by any agency, "for good cause," the deadlines are less commendable than they might be. It is still refreshing to hear an agency be told to complete all its reviews and decide on the merits of an application in 16 months.²² The Act has an established procedure for approvals:

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1. By the agency if it has authority to grant approvals and no wilderness area is involved.

2. By the President if the agency has authority, there is no wilderness area, and the agency denies the approval.

3. By any appropriate federal court if the President denies approval.

4. By the Congress if the agency lacks the authority or there is a wilderness area involved and if the President decides the application should be approved. Denial at the Presidential level is also subject to judicial review.²³ The approval section has a Congressional veto provision that is of questionable constitutionality after Immigration and Naturalization Service v. Chadha.²⁴

There are special environmental conditions for wilderness areas, wild and scenic rivers, and pipelines.²⁵

NATIONAL PARK LANDS

The national park system includes national parks, monuments, historic parks, parkways, and national recreation areas.²⁶ Most units of the national park system are created by specific statute and the limitations on use and access are included within the

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enabling legislation.²⁷ Lands are often withdrawn from mineral entry, subject to existing rights.²⁸ The Secretary is authorized to regulate private property by a standard set out in the specific statute. Generally the standard has something to do with allowing uses consistent with the purposes of the Act or to the maximum extent practicable.²⁹ Judicial toleration of rigorous regulation by the Park Service is great.³⁰

Judicial toleration may be even greater of Congressional...