CHAPTER 11 WILDERNESS REVIEW AND RIGHTS OF ACCESS
| Jurisdiction | United States |
(Nov 1984)
WILDERNESS REVIEW AND RIGHTS OF ACCESS
American Mining Congress
Washington, D.C.
INTRODUCTION
Twenty years have passed since the Congress enacted the Wilderness Act.1 That Act provided legislative support for administrative action going back to 1930 that had set aside within the national forests 88 wilderness type areas ... i.e. wilderness, wild, primitive and canoe. In 1964 the total wilderness-type areas amounted to 14,598,681 acres. By the end of 1983, that figure had been increased to 79.84 million acres.
As of October 10, 1984, the 98th Congress has added more than 6.5 million acres of wilderness. Pending are bills to designate 3.5 million additional acres. These figures do not include the areas under ongoing wilderness study.
The purpose of the designated wilderness as outlined in the many bills offered in 1964 was "securing for the American people of present and future generations the benefits of an enduring resource of wilderness."2
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The purpose of this paper is to explore the rights of access to the designated wilderness lands and those designated for study, including areas within units of the national park system and the national wildlife system that might qualify for inclusion in the wilderness system after thorough review.
I. Wilderness Review
A. The Wilderness Act of 1964.
The intent of Congress in 1964, to allow ingress and egress to wilderness areas in national forest lands consistent with the use of the land for mineral location and development, exploration, drilling and production, is clear from the statutory language.
Section 4(c) provides that there shall be no commercial enterprise and no permanent road within any wilderness area designated by the Act, and no temporary road "Except as specifically provided for in this Act, and subject to existing private rights,..."3
The specific provisos that constitute the exception noted above are as follows:
Section 4(d)(2) allows "any activity, including prospecting for the purpose of gathering information about minerals...if such activity is carried on in a manner compatible with the preservation of the wilderness environment."4
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Section 4(d)(3) authorizes the continuation of the operation of the United States mining laws and all laws pertaining to mineral leasing, until midnight December 31, 1983, subject, however, to "such reasonable regulations governing ingress and egress as may be prescribed by the Secretary of Agriculture...."5
This subsection also provides that in all mining patents issued under the mining laws of the United States affecting national forest lands designated by this Act as wilderness areas, each such patent shall reserve to the United States all title in or to the surface of the lands and products thereof (except the title to the mineral deposits within the mining claim), and specifically provides that "...no use of the surface of the claim or the resources therefrom not reasonably required for carrying on mining or prospecting shall be allowed except as otherwise expressly provided in this act..."
And in a further manifestation of acceptance of the concept of ingress and egress for mining uses, the Congress provided in Section 5(a) that where state-owned or privately-owned land is completely surrounded by national forest lands within areas designated by the Act as wilderness, "...such state or private owner shall be given such rights as may be necessary to assure adequate access to such state-owned or privately owned land..." or such lands can be exchanged for federally owned land of equal value.(emphasis supplied)6
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Subsection (b) provides that where valid mining claims or other valid occupancies are wholly within designated national forest wilderness area, the Secretary of Agriculture, by reasonable regulations consistent with preservation of wilderness shall "...permit ingress and egress to such surrounded areas by means which have been or are being customarily enjoyed with respect to other such areas similarly situated."
The legislative history of the 1964 Wilderness Act outlines a plan for a statutory framework for the preservation of wilderness to permit long range planning and to assure that "...no future administrator could arbitrarily or capriciously either abolish wilderness areas that should be retained or make wholesale designation of additional areas in which use would be limited.7
The basic principle as outlined by the House Committee on Interior and Insular Affairs was "...to act in the national interest with due regard to regional and local interests."8
Under the plan, areas within units of the national park system and the national wildlife system that might qualify as wilderness are to be subjected to a thorough review to determine if they qualify for inclusion in the wilderness system.
The legislative history makes clear that new mining will be phased out and all minerals withdrawn effective January 1, 19849 . There is no discussion in the committee reports of the provisions of the statute regarding access to mining uses and
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there was no transcript made of the conference committee meetings in 1964 so that source of legislative history is not available.
However, in a colloquy on the Senate floor in 1963 during debate on the wilderness bill the following exchange took place.
Mr. Cotton. If there are existing rights of way or roads or even ways that by prescription would be considered rights-of-way, are they preserved too?
Mr. Church. The Senator is correct. This is an amendment that I myself propose to the bill, because there are in my State inholdings—ranches which were homesteaded many years ago and which lie entirely within primitive areas. We wanted to be perfectly sure that the owners of those ranches were guaranteed the customary usage of their property for ingress and egress according to the customary ways, so the bill provides, quoting now from section 4, page 14:
Provided however, That nothing in this Act shall be construed to confer a right of condemnation with respect to privately owned land within the boundaries of wilderness area, or to impair any customary right or privilege heretofore enjoyed by the owners of such land, respecting access to it or to its ordinary use and maintenance.
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Mr. Cotton. I take it that the language means a road or trail customarily used even if no legal right of way has been acquired because the land was owned by a corporation or for other reasons? Under the language in this bill such customary use would be presumed to have created a right-of-way?
Mr. Church. The language speaks for itself. Whatever has been the customary method of ingress and egress would continue to be preserved."10
In his remarks before the House July 30, 1964, Congressman Aspinall, the manager of the Wilderness bill said:
In making these provisions for mineral exploration and development we have provided the necessary caution for the protection of the wilderness values in the areas....I also point out that in order to make these provisions meaningful to the mining industry we have provided that the Secretary of Agriculture, while controlling ingress and egress must, where essential, permit the use of mechanized ground or air equipment.11
The Solicitor for the Department of the Interior, in commenting on the legislation provided the following technical amendments:
(1) with regard to valid existing rights:
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The requirement of the bill that all patents issued after the effective date of this act shall convey title to mineral deposits with a reservation to the United States of all title to the surface of the lands must be subject to 'valid existing rights'. The owner of a valid mining claim perfected under the mining laws prior to the effective date of this act has already acquired a possessory title to the surface of the land and any patent issued on such a claim after the effective date of this act must convey title to both the land and mineral deposit therein, unless provision is made for just compensation. See Solicitor's Opinion, M-3647 (August 28, 1957).
(2) recommended the inclusion of the following language: Mining claims located after the effective date of this act within the boundaries of wilderness areas designated by this act shall create no rights in excess of those rights which may be patented under the provisions of this subsection.
The Solicitor said that in order for the bill to constrict the rights acquired by a mineral patentee of a mining claim located subsequent to the effective date of the act, it must likewise constrict the rights acquired under such locations and the above amendment would do that.
(3) the Solicitor suggested the following amendment: In the case of state-owned land completely surrounded by land within a national forest wilderness area, the bill
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provides two alternatives: (1) The State may be given reasonable access rights, or (2) the State land may be exchanged for 'vacant, unreserved, and unappropriated mineral or nonmineral lands in the same State.'12
B. The Federal Land Policy and Management Act of 1976
The provisions of the Wilderness Act requiring a review of Federal lands by the Secretaries of the Interior and Agriculture to determine their potential as wilderness restricted the review to lands within national parks, wildlife refuges and forests. The Public Land Law Review Commission had recommended that the public land law management agencies make recommendations for consideration to Congress for the inclusion in the wilderness system of any key wild areas of public domain or national forest lands that qualify13 but there was no statutory basis for inclusion of wilderness areas on public lands.
The Federal Land Policy and Management Act, often referred to as the "BLM Organic Act", and FLPMA provided the BLM with what its sponsors called "...a...
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