CHAPTER 15 EFFECTS ON THE PRIVATE LAND OWNER OF RECLAMATION AND LAND USE REGULATIONS GOVERNING MINERAL DEVELOPMENT OF THE SEVERED MINERAL ESTATE

• Jurisdiction: United States

Western Land Use Regulation and Mined Land Reclamation
(Nov 1979)
CHAPTER 15
EFFECTS ON THE PRIVATE LAND OWNER OF RECLAMATION AND LAND USE REGULATIONS GOVERNING MINERAL DEVELOPMENT OF THE SEVERED MINERAL ESTATE
Henry A. Burgess
Burgess & Davis
Sheridan, Wyoming

INDEX

SYNOPSIS

Introduction

I. Review of SMCRA's Provisions Affecting Landowner

II. Areas of Consent Left to the Surface Owner and the Surface Owner's Right to Veto

III. Who Determines Land Use After Mining Is Completed

IV. The Rights of Third Party Statutory Invitees to Intervene in the Procedures

V. The Effect of Legislation with Respect to Abandoned Lands and Determination of Lands Unsuitable for Mining

A. Abandoned Lands

B. Lands Unsuitable for Mining

VI. Landowner's Organizations

VII. Preemption of Common Law Doctrines of Nuisance and Protection of Lateral and Subjacent Support by Statutory Strict Liability

Summary

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INTRODUCTION

A short review of the historical background of the relationship between mining and agriculture in the United States would seem proper in presenting the problems relating to landowner's consent to surface mining.

Historically, federal coal leases were obtained under the Act of 1873 (17 Stat. 607), which provided an individual could enter up to 160 acres of vacant and unreserved coal lands in the public domain. By association with others, one could obtain 640 acres. The cost was $10 an acre if the land was more than fifteen miles from a railroad and $20 an acre if less than fifteen miles from a railroad. Where there was no outcropping of coal on forty acres even if known to be underlain with coal, it was officially "non-coal" in character, the land was subject to homestead entry. Through dummy claimants, large acreages could be acquired. In 1906, President Roosevelt suspended all entries on the public domain for coal and for homesteads. He then called upon Congress to provide for development of surface lands separately from mineral fuels and for disposition of mineral fuels by lease.

In 1907, the House Committee on Public Lands began hearings on the subject of coal lands and coal land laws. In 1909, Public Law 323 (35 Stat. 844, 30 U.S.C. § 81), was passed. Public Law 323 provided that a homestead entryman who took up land in good faith under the homestead laws on lands subsequently classified as coal lands could obtain a patent with a coal reservation to the United States. It prevented others from prospecting the land without consent of the owner. The legislation is of significance because it permitted a severance of the mineral estate from the surface estate within the same tract and required the permission of the surface estate owner to prospect.

In the following Congress (60th), Public Law No. 227 (36 Stat. 583, 30 U.S.C. § 83-85 ) permitted homestead entry on public lands even after they had been classified as coal lands with a reservation of coal to the United States.

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The House Committee on Public Lands in the 59th Congress held extensive hearings on the problems relating to coal leasing, and the members of that committee appear to have served on through the 60th and 61st Congress.

A review of those hearings and materials, leads one to conclude that both the President, the Department of Interior, and Congress were considering the traditional methods of coal mining by shaft or tunnel.

President Roosevelt in a message to Congress on February 13, 1907, said:

"I recommend to Congress the enactment of such legislation as would provide for title to and development of the surface land as separate and distinct from the right to the underlying mineral fuels.... Such a leasing system is by no means an untried policy.... In Great Britain leases are granted almost entirely by private landowners, but there, as in other countries, the surface culture and the mining operations are conducted independently of each other .... It is gratifying to note that in these States, as in foreign countries these two great industries — agriculture and mining — are conducted within the same boundaries, and the country thus attains its highest dual development without conflict of interests." (Emphasis supplied.)

Noteworthy is that his remarks were predicated upon the surface culture and mining operations being conducted independently of one another without a conflict of interest.

The House Committee on Public Land in 1909 reported on agricultural entries on coal lands and cited the need for agricultural entries on the coal land so that millions of acres of land would not lie idle.

Reports of debates of that committee and testimony of witnesses before it make it clear that underground mining

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was contemplated. However, Congressman Mondell of Wyoming warned that mining of lignite on the surface might prove lucrative and advised others of the surface mining of bentonite and its surface requirements. But Congressman Mondell's warning about surface mining was academic until recently when the costs of surface mining western coal became favorable and leases of federal coal were obtained under the fee surface estate of the homesteader or his successor.

Technology has now made President Roosevelt's concept of agriculture and mining being conducted without conflict of interests invalid.

I. REVIEW OF SMCRA'S PROVISIONS AFFECTING LANDOWNER

The following sections of the Act relate to the subject of the surface owner's status and rights under the Act. SMCRA's first paragraph is the Statement of Findings and Policy, and Title 30, § 1201(c), recites all of the evils attendant to surface mining operations in the following language:

"many surface mining operations result in disturbances of surface areas that burden and adversely affect commerce and the public welfare by destroying or diminishing the utility of land for commercial, industrial, residential, recreational, agricultural, and forestry purposes, by causing erosion and landslides, by contributing to floods, by polluting the water, by destroying fish and wildlife habitats, by impairing natural beauty, by damaging the property of citizens, by creating hazards dangerous to life and property by degrading the quality of life in local communities, and by counteracting governmental programs and efforts to conserve soil, water, and other natural resources;"

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But, in (e) the Act finds:

"surface mining and reclamation technology are now developed and effective so that if regulated by the states and federal government under the requirements of SMCRA, the adverse, social, economic, and environmental effects of such mining may be minimized."

So, in theory at least, the agricultural surface estate can be pursued without the conflict of interest referred to by President Roosevelt.

And, in (f) the Act provides:

"because of the diversity in terrain, climate, biologic, chemical, and other physical conditions in areas subject to mining operations, the primary governmental responsibility for developing, authorizing, issuing, and enforcing regulations for surface mining and reclamation operations subject to this chapter should rest with the States;"

Yet, as of this date, the states may develop and enforce only those regulations previously approved by the Secretary of Interior.

Section 1201(k) provides:

"the cooperative effort established by this chapter is necessary to prevent or mitigate adverse environmental effects of present and future surface coal mining operations."

What does that mean? Cooperative effort indicates and infers involvement of agencies and persons other than federal agencies and officials, such as states and landowners, but is cooperation a unilateral or bilateral activity under the Act?

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Section 1202 of the Act is a Statement of Purpose and under (b) of the Act one of the stated purposes of the Act is to:

"assure the rights of surface landowners and other persons with a legal interest in the land or appurtenances thereto are fully protected from such operations."

Note that the section does not define nor describe what landowner's rights are, nor does it confer any substantive legal right upon the landowner, nor attempt to define the landowner's rights.

Section 1202(d) of the Act states that the purpose of the Act is to assure that surface coal mining operations are so conducted as to protect the environment. The landowner is also the incidental beneficiary of certain rights granted to environmentalists in other sections of the Act. Being a landowner does not preclude him from exercising rights as an environmentalist.

Section 1211(c)(11) of the Act provides the Secretary shall:

"monitor all Federal and State research programs dealing with coal extraction and use and recommend to Congress the research and demonstration projects and necessary changes in public policy which are designated to (A) improve feasibility of underground coal mining, and (B) improve surface mining and reclamation techniques directed at eliminating adverse environmental and social impacts;"

Again, it would seem that any study and research conducted for demonstration projects and changes in public policy directed at reclamation techniques and eliminating adverse environmental impacts would of necessity include input from the landowner.

Under §§ 1221-1230 of the Act, State Mining and Mineral Resources and Research Institutes are provided for

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financially to achieve ongoing studies on mining. At the state level, landowners have historically wielded some clout and it would seem that under the Act an opportunity for their participation in state activities is available to landowner associations and organizations.

Under § 1236 of the Act, the Secretary of Agriculture is authorized to enter into agreements for prevention of erosion and sediment damage to unreclaimed mined lands...