CHAPTER 12 ACCESS FOR MINERAL OPERATIONS
| Jurisdiction | United States |
(Mar 1981)
ACCESS FOR MINERAL OPERATIONS
Van Cott, Bagley, Cornwall & McCarthy
Salt Lake City, Utah
I. INTRODUCTION
One of the critical factors in developing a mineral resource extraction operation is whether access to the mineral deposit is available, and if so, whether the expense of acquiring the access will be so great as to make the extraction of the mineral uneconomic. Too often, access is the last major factor to be addressed, and as a result, the project is delayed pending approval of the access proposal by the agency managing the land across which the access is sought.
Over the last decade, there has been an explosive increase in the number and complexity of governmental permits and approvals necessary for mineral operations. The dramatic increase in approval requirements for access across government lands has contributed to the permit explosion.
The subject of access to mineral operations has been treated in many recent articles, most notably in Lewis, Access Problems and Remedies for Oil and Gas Operators, 26
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Rocky Mtn. Min. L. Inst. ____ (1980); Due, Access, Rare II and Other Fables, 25 Rocky Mtn. Min. L. Inst. 10-1 (1979); Ferguson, Forest Service and BLM Wilderness Review Programs and Their Effect on Mining Law Activities, 24 Rocky Mtn. Min. L. Inst. 717 (1978); Biddle, Access Rights Over Public Lands Granted by the 1866 Mining Law and Recent Regulations, 18 Rocky Mtn. Min. L. Inst. 415 (1973); Lonergan, Access to Intermingled Mineral Deposits, Mining Claims and Private Lands Across Surrounding Public Domain and National Forest Lands, 8 Land & Water L. Rev. 125 (1973); Due, Access Over Public Lands, 17 Rocky Mtn. Min. L. Inst. 171 (1972); and Frison, Acquisition of Access Rights and Rights-of-Way on Fee, Public Domain, and Indian Lands, 10 Rocky Mtn. Min. L. Inst. 217 (1965). This paper can do no more than repeat much of what has been written in these articles and update the information contained therein where applicable.
This paper will discuss the various legal means of access across federally-managed public lands to mineral operations, including lands managed by the Bureau of Land Management, the National Park Service, the Forest Service, and the National Wildlife Refuge System. In addition, access problems relating to state lands will be discussed.
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II. ACCESS ACROSS FEDERALLY-MANAGED LANDS
The Federal Land Policy and Management Act of 1976 ("FLPMA") has triggered a proliferation of regulations and lawsuits relating to access across public lands. In particular, FLPMA sets forth detailed statutory requirements relating to rights-of-way across Bureau of Land Management ("BLM") and Forest Service Lands, establishes a wilderness review system, and provides rather general statutory authority for the BLM's surface management regulations relating to operations on mining claims. In addition to regulations based on FLPMA, the Interior Department has recently published new regulations relating to rights-of-way for petroleum pipelines, access through National Park lands, and access across National Wildlife Refuge lands.
It is essential not only that the proponent of a mineral operation on or near public lands be intimately familar with the federal access requirements, but also that consideration be given to any federal land access problems at the earliest stages of project planning. The failure to give access early consideration in project planning can have disastrous consequences.
A. Access to Mining Claims — General.
Since the enactment of the Mining Law of 1872, it has
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been a fundamental tenet of mining law that a mining claimant has an implied right of access aross public land to his mining claim. The implied right of access to mining claims has been so fundamental that there have been few decisions discussing the proposition. One of those decisions, United States v. 9,947.71 Acres of Land (220 F. Supp. 328) (D. Nev. 1963), explains why the implied right of access to mining claims is so self-evident.
It is not difficult to perceive that such lack of case authority arises from the sheer logic of the proposition that, when the government granted mining rights on the vast mountainous, and often impassible, areas of the West which were in public domain, accessible only by passing over the public domain, it granted, as a necessary corollary to mining rights, the right not only to pass over the public domain but also a property right to the continued use of such roadway or trail, once it was established and used for that purpose. To realize the force of the proposition just stated, one need but to raise their eyes, when traveling through the West to see the enumerable roads and trails that lead off, and on, through the public domain, into the wilderness where some prospector has found a stake (or broke his heart) or a homesteader has found the valley of his dreams and laboriously and sometimes at very great expense built a road to conform to the terrain, and which in many instances is the only possible surface access to the property by vehicles required to haul heavy equipment, supplies and machinery.
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If the builders of such roads to property surrounded by public domain had only a right thereto revocable at the will of the government, and had no property right to maintain and use them after the roads were once built, then the rights granted for development and settlement of the public domain, whether for mining, homesteading, townsite, mill sites, lumbering, or other uses, would have been a delusion and a cruel and empty vision, inasmuch as the claim would be lost by loss of access, as well as the investment therein, which in many cases of mines required large sums of money, before return could be had. (220 F. Supp. at 331).
The Interior Department issued two decisions prior to the foregoing district court case which relate to the question of the implied right of access of mining claimants across the public domain. In one of these, a Solicitor's Opinion entitled Rights of Mining Claimants to Access Over Public Lands to Their Claims, 66 I.D. 361 (1959), the Acting Solicitor considered the question of whether a mining claimant who builds a road to his mining claim across public land may be charged a fee for the use of such road, where no exclusive right-of-way is applied for or granted by the United States. In holding that no charge may be assessed, the Acting Solicitor declared that "legislation providing for the making of entries and locations necessarily presupposes a right of passage as an incident to the other rights granted, and the general rule that free passage over the public lands has always been recognized" (66 I.D. at 362). The Acting Solicitor
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concluded that "[t]he 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" (66 I.D. at 363). Finally, the Acting Solicitor held that although no charge may be made on a road used as a necessary incident to the maintenance of a mining location, the miner may be liable in damages if he unnecessarily causes loss or injury to the property of the United States (66 I.D. at 366).
The Acting Solicitor's opinion was quoted extensively in Alfred E. Koenig, 4 IBLA 18, 78 I.D. 305 (1971), which was an appeal from a decision of the Bureau of Land Management rejecting an application for a special lands use permit to accomodate an access road across public lands for access to his mining claim. The Interior Board of Land Appeals, quoting extensively from the Acting Solicitor's opinion, held that if the road does not exclude the general public, no BLM authorization is required.
Access to Mining Claims — Surface Management Regulations.
The straightforward general rule relating to the implied right of access to mining claims was clouded by the enactment of FLPMA in 1976. In particular, Section 302(b) of FLPMA (43 U.S.C. § 1732(b)) contains the following proviso:
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Except as provided in Section 314 [relating to withdrawals], Section 603 [relating to wilderness areas] and Subsection (f) of Section 601 [relating to the California desert conservation area] of this Act and in the last sentence of this paragraph, no provision of this section or any other section of this Act shall in any way amend the Mining Law of 1872 or impair the rights of any locators or claims under that Act, including, but not limited to, rights of ingress and egress. In managing the public lands the Secretary shall, by regulation or otherwise, take any action necessary to prevent unnecessary or undue degradation of the lands.
This section of FLPMA is cited by the Bureau of Land Management as authority for its recently published regulations governing surface management of unpatented mining claims (43 CFR Subpart 3809, 45 Fed. Reg. 78901 (November 26, 1980)). Basically, these regulations provide that any significant surface disturbance resulting from operations on a mining claim situated on land managed by the Bureau of Land Management may be allowed only pursuant...
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