CHAPTER 2 LANDS AVAILABLE FOR LEASING OR SIMILAR DISPOSAL OF MINERALS
| Jurisdiction | United States |
(Nov 1971)
LANDS AVAILABLE FOR LEASING OR SIMILAR DISPOSAL OF MINERALS
Professor of Law University of Wyoming
I. INTRODUCTION
Generally speaking, the difficulties one encounters in determining what lands are available for leasing or similar disposal of minerals is, to a great degree, the result of law that—like Topsy—"just growed." Thus, a great number of specific Congressional enactments (not to mention even more numerous administrative determinations) are devoted to what lands might be available for mineral leasing. This leads to a problem of communication on the part of anyone attempting to set out a general review of a specific subject such as that which we are here considering—i.e., what lands are available? That problem of communication is how best to organize the rather disjointed body of applicable law into some sort of cohesive and comprehensible format which is meaningful and helpful to the reader when he has a question in the area. Almost all of the Public Land Law Review Commission Contract Studies which the author has reviewed seem to have wrestled with this difficulty—with varying results. The two studies which the author has found most helpful in preparing this paper and which seem to have most adequately solved the foregoing communication problem are RMMLF's Legal Study of the Federal Competitive and Noncompetitive Oil and Gas Leasing Systems and Twitty, Sievwright and Mills Legal Study of the Nonfuel Mineral Resources.1 While the author is not completely satisfied
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with either Study's format, this paper is, at best, a slightly modified adaptation of their approach.2
In this paper, the author will review the applicable law from general to specific, which is to say, we will begin with the broad general statements of what lands are available for leasing and then move to exceptions to the general statements. The exceptions may be either of a general nature or of a more specific nature. Sometimes the exceptions may be so specific as to be almost ludicrous in nature.3
What, then, is the problem that faces the individual who has the practical necessity of making sense from these laws because an individual he represents wants to know what he can expect? Typically, it is one of determining for his principal the availability of a specific piece of land in which his principal hopes to have a legal interest and in which his principal presently has an interest of a less legalistic, but more traditional nature, i.e. the principal wants to obtain and develop the lands. Our individual probably has a status report before him ostensibly setting
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forth the historical record status of the lands, i.e. what specifics it might be subject to, how it was obtained, etc.4 Given the information received, then, would the land be available? (The author assumes the land is not already leased, if leasable, by some other individual.)
II. PUBLIC DOMAIN LANDS
A. Generally.
The author suggests that a good point of departure for our individual is for him to make a determination as to whether or not the specific land in question is public domain land.5 Stated another way, he should determine whether the land in question comes within the ambit of the Mineral Leasing Act of 1920.6 This is probably a more precise statement of the ultimate question, since the public domain-acquired land dichotomy does not hold true in all instances.7
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As amended, the Act applies to:
Deposits of coal, phosphate, sodium, potassium, oil, oil shale, native asphalt, solid and semisolid bitumen, and bituminous rock (including oil-impregnated rock or sands from which oil is recoverable only by special treatment after the deposit is mined or quarried) or gas, and lands containing such deposits owned by the United States, including those in national forests, but excluding lands acquired under the Appalachian Forest Act, and those in incorporated cities, towns, and villages and in national parks and monuments, those acquired under other Acts subsequent to February 25, 1920, and lands within the naval petroleum and oil-shale reserves,...8
The Act also includes sulphur lands in Louisiana and New Mexico, but only within those states.9
The literal language of the Act is broad—and misleading. Obviously, if the land comes within the specific exclusions enumerated, the authority of the Act is not available,10 and the lands falling within the exclusions, otherwise available, cannot be leased under the Act.
However, the Act has been further limited in its coverage. Generally speaking, it has been limited in its operation to public domain lands.11 It has been strongly suggested that if lands have been reserved or segregated for a particular purpose, they are not available under the terms of the Act.12
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Acquired lands generally are not available under the Act.13 Further, it was early the position of the Department of Interior that minerals underlying rights of way and easements across public domain lands were not available lands within the meaning of the Act.14
However, this position has apparently been limited to oil and gas leasing situations by the Department.144
Thus, our general determination is whether or not the land in question is public domain. If it is, then the determination is whether the Leasing Act of 1920 is authority to make the lands available. If they are traditional public domain—i.e. vacant, unappropriated, and unreserved—we have no great difficulties. The Act applies. Unfortunately, for our purposes, there is little of such land left in the United States. We must then turn to the specific types of public domain lands which now exist, usually withdrawn, reserved or dedicated to some specific purpose.
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B. National Forest Lands and Wilderness Areas.
From the point of view of this particular paper at this particular INstitute, forest lands do not really pose much of a problem. They are made specifically subject to the Leasing Act of 1920 by the legislation itself.15 The only exception to this in the Act is "lands acquired under
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the Appalachian Forest Act,..."16 Thus, forest lands coming within the 1920 Act include lands acquired under the Forest Exchange Act of 1922.17 On the other hand, it would seem that lands which are looked upon as traditional acquired lands would not be available thereunder if they were acquired by other Acts subsequent to February 25, 1920, and not as an exchange.18 Lands which have been withdrawn or segregated from leasing by statute or executive order, but then later removed from the segregation and added to a national forest would seem to be leasable under the 1920 Act.19
The difficulties in this area have not emanated from the determination of whether the lands are or are not statutorily available for leasing. They have arisen because of the Interior Secretary's determination in given instances to exercise his discretion not to lease. That consideration is not within the scope of this paper, but is left to the individual on the program dealing with such problems.
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Wilderness areas also do not pose great difficulties from the point of view of statutory authorization for leasing. The Wilderness Act of 196420 establishes "a National Wilderness Preservation System to be composed of federally owned areas designated by Congress as 'wilderness areas'...."21
The Act provides:
Notwithstanding any other provisions of this chapter, until midnight December 31, 1983,...all laws pertaining to mineral leasing shall, to the same extent as applicable prior to September 3, 1964, extend to those national forest lands designated by this chapter as "wilderness areas",...22
Thus the Leasing Act of 1920 would seem to be the basic leasing authority for any such lands which were public domain type lands prior to their being designated "wilderness areas." Of course, if the particular lands involved were traditional acquired lands, the 1920 Act would probably not be available.23 The Act also acts as a total withdrawal as of January 1, 1984, providing:
Subject to valid rights then existing, effective January 1, 1984, the minerals in lands designated by this chapter as wilderness areas are withdrawn ... from disposition under all laws pertaining to mineral leasing and all amendments thereto.24
There is some uncertainty regarding some wilderness areas, notwithstanding the rather specific foregoing language. The specific provisions above cited (as well as most of the provisions of the Act) apply only to the Act itself and the areas designated thereunder.25 There is provision
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in the Act for the designation of additional lands as "wilderness areas" by Act of Congress.26 Apparently, the limitation of the provisions to the areas created under the Act require that each future Act designating additional lands as "wilderness areas" must state that those areas are also subject to the mineral leasing laws in order to make such lands available for leasing.27 None of the Acts enacted to date which have designated "wilderness areas" subsequent to the Wilderness Act of 1964 have specifically made the areas designated subject to the mineral leasing laws.28 On the other hand, all of the designations contain the specific provision, or a slight variation thereof, that the areas designated thereunder:
shall be administered in accordance with the provisions of the Wilderness Act governing areas designated by that Act as wilderness areas...29
This type of provision would seem to make it at least arguable that these designations are subject to the leasing law provision.30
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