CHAPTER 10 "THE LONG AND WINDING ROAD" OR THE DIMINISHING RIGHT OF ACCESS TO FEDERAL LANDS FOR MINERAL DEVELOPMENT
| Jurisdiction | United States |
(May 1995)
"THE LONG AND WINDING ROAD" OR THE DIMINISHING RIGHT OF ACCESS TO FEDERAL LANDS FOR MINERAL DEVELOPMENT
Crowell & Moring
Washington, D.C.
INTRODUCTION
Although the Mining Law of 18721 has been consistently interpreted to provide a mandatory right of access across public lands for hardrock mining claimants2 , mineral lessees and many other natural resource developers do not enjoy the same guarantee of access. And, even the Mining Law's "absolute" right of access is subject to environmental regulations that diminish the grant of access. First, this paper will describe briefly the history of federal land development and access to provide a framework within which to analyze the evolution of access. Second, the authority governing most access to federal lands, the Federal Land Policy and Management Act of 1976 ("FLPMA") will be analyzed. That section will also describe four significant federal environmental analyses that can act to delay or, in some cases, restrict access. Third, substantive guarantees of access including the Mining Law of 1872 will be described, followed, fourth, by a discussion of other rights-of-way authority under other statutes, including the Mineral Leasing Act. Fifth, the special regulation of access in wilderness areas is discussed. Finally, the paper will describe access termination and penalties for unlawful access on federal lands.
I. HISTORICAL BACKGROUND TO FEDERAL LAND DEVELOPMENT AND ACCESS
From the 1890's to the 1990's, access to or across federal lands has been the flashpoint in western natural resource disputes. Although the rights-of-way disputed may have changed in those 100 years, the fierceness of the argument has not abated. At the close of the 20th century, we observe access disputes between natural resource developers, the growing population of western homeowners and environmentalists. The current tension, physical violence, and litigation between
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local authorities and the Forest Service in Nevada is a vivid depiction of the intensity of the battle. The road into federal lands is often the first point at which a project can be halted or re-directed. A good working knowledge of access law can be critical to the success or failure of a mineral development project.
A. Federal Land Disposal and Free Use
The access issue begins with the development of the federal lands in the late 1800's — many access issues are a direct result of that history. The federal government is the owner of approximately half of the 760-million acre area of the 11 public domain states and, like any landowner, can exclude others from its real property. Congressional power to retain, dispose of, and regulate the use of the public domain is found in the Property Clause of the U.S. Constitution and is "without limitations."3 And, this power over federal lands is absolute, that of both a sovereign and a proprietor.4 This plenary power to regulate the use of public lands is a fundamental, but critical foundation to any discussion of access to federal lands.
Initially, access to federal lands was readily available because the federal government treated the public lands as free and open to use by all. The government assumed that ultimately all public land would be in private hands. In 1850, in order to encourage the settlement of the West, aid in mineral development in California and, later, prevail in the Civil War, the federal government granted federal lands to railroad companies to entice them to construct transcontinental railroads.5 In the 1860's, Congress granted millions of acres of federal land to the Union Pacific Railroad and the Northern Pacific Railroad.6 Ultimately these railroad land grants totalled over 130 million acres.7
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The railroads were granted every alternate section of public domain, not mineral or previously homesteaded, for 20 miles on either side of the right-of-way.8 These congressional grants of the public domain resulted in the characteristic checkerboard pattern of land ownership found in the public land states. The government expected that the land it retained in federal ownership would double in value, which increase it would realize when it sold the land to settlers. The government's expectations concerning the appreciation of the land were never realized. In fact, the government had to give away a significant portion of the land it had retained in order to encourage the settlement of the West. The land passed into private ownership through a series of "homestead" acts.9 The "left-over" public domain, after forest reserves were set aside, ultimately became lands administered by the Bureau of Land Management ("BLM") in the Department of the Interior ("Interior").
The "checkerboard" of the public domain was further fragmented by subsequent conveyances and the severance of mineral and surface estates.10 No express grant of access was made in either the homestead acts or the railroad land grant acts. The government's liberal policy of "free use" of the public lands continued and it was presumed that "an implied license" to use public lands provided access to checkerboarded private lands.11
B. Organic Act of 1897: The National Forests
The policy of "free use" of the public domain began to change shortly after the United States set aside certain lands as forest reserves in the Organic Act of 1897.12 Intermingled with the federal land to be set aside as forest reserves were private property (inholdings) — patented mining claims, homesteads and even
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towns.13 Concerns raised by western congressmen about these inholdings resulted in a provision in the Organic Act of 1897 to deal with the issue of access. The Organic Act provided that:
Nothing [in this Act] shall be construed as prohibiting the egress or ingress of actual settlers residing within the boundaries of national forests, or from crossing the same to and from their property or homes; and such wagon roads and other improvements may be constructed thereon as may be necessary to reach their homes and to utilize their property under such rules and regulations as may be prescribed by the Secretary of Agriculture. Nor shall anything in such sections prohibit any person from entering upon such national forest 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.
16 U.S.C. § 478 (emphasis added). Thus, from the origin of national forests access to intermingled lands was viewed by Congress as a right that could be regulated to protect the purposes of the national forests. And, the access rights of the mineral developer, although recognized, were set apart as different from those of a homesteader.
C. Mineral Development Access Rights
Congress continued to provide new rights of access to or across federal lands until it had erected a "tangled array of laws."14 These included several express rights of access for mineral development.
1. Lode Law of 1866 and R.S. 2477
The most significant of these early access laws is the Lode Law of 1866, known by its more familiar reference, R.S. 2477, which remains a source of controversy in 1995. The Lode Law of 1866 was the first federal mining law opening federal mineral lands to exploration.15 The Act protected existing access
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rights for mineral development already created and contained authority to establish access. Section 8 of the 1866 Act (R.S. 2477) granted a "right of way for the construction of highways over public lands not reserved for public uses...."16 No federal application for such a right-of-way was required on open and unreserved public domain lands, and the right-of-way, once established, remained a public road. Many roads established under this authority exist and may provide access for mineral developers. See infra section IV B.
2. Mining Law of 1872
Miners had, and continue to have, an implied right of access under the Mining Law of 1872. This access right has been recognized in several related statutes and by Interior and the courts.17 See infra section III A.
These historical rights of access over the public domain were fundamentally altered with the passage of FLPMA in 1976. If FLPMA did not repeal the right-of-way, or specifically regulate the right-of-way, its pervasive system of access management provided a model for regulation of rights-of-way under other statutes.
II. RIGHTS-OF-WAY UNDER FLPMA
A. Introduction to FLPMA
In 1976, Congress sought to resolve the confusion in access authority it had created and to provide better management of the federal lands by enacting
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FLPMA which repealed over 30 statutory access authorizations.18 FLPMA establishes the procedures for processing rights-of-way requests; it does not guarantee a substantive right of access. FLPMA provides a broad grant of authority to the Secretaries of Agriculture and Interior "to grant, issue, or renew rights of ways over [Forest Service and BLM lands] for...roads, trials [and] highways."19 However, since FLPMA §§ 509 and 701(h) also preserved valid existing rights under old rights-of-way authorities, these statutes remain important for pre-1976 access rights.20
FLPMA lists seven categories of purposes for which the BLM and the Forest Service may grant rights-of-way. FLPMA Title V governs the acquisition of new rights-of-way for six enumerated categories of economic endeavors (e.g., water storage and distribution facilities, many pipelines, electrical transmission facilities, communication systems, road and railroad routes), and a catch-all seventh category for "other necessary transportation or other systems or facilities which are in the public interest."21 Notable exceptions are rights-of-way for oil and gas pipelines which are regulated under § 28...
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