CHAPTER 2 A PRIMER ON SPLIT ESTATES IN THE NEW WEST: TOWARD A REGULATORY WAY OF THINKING

• Jurisdiction: United States

Surface Use for Mineral Development in the New West
(Feb 2008)
CHAPTER 2
A PRIMER ON SPLIT ESTATES IN THE NEW WEST: TOWARD A REGULATORY WAY OF THINKING
Brett Birdsong
Professor
William S. Boyd School of Law
University of Nevada
Las Vegas, Nevada

Overview

█ History of the Federal Mineral Estate

█ Federal Mineral Reservations in Patented Lands

█ The Private Split Estate Analog

█ Federal Property Clause Authority and the Nature of Federal Minerals

█ Federal and State Control of Federal Minerals

█ Federal Common Law and Federal Property

█ Preemption and State Surface-Use Laws

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History of Federal Mineral Estate

█ The "mythical" Regalian right to minerals

█ Early Approach: Mineral Classification of Federal Lands

█ A Familiar Story: Fraud and "Waste"

█ A Modern Approach: Fragmentation of the Estate by Reserving Minerals in Federal Patents

Federal Mineral Reservations

█ Executive Withdrawal of Coal and Petroleum Lands from Homestead and Preemption Entry

█ Pickett Act of 1910 Withdrawals

█ Coal Lands Acts (1909 and 1910)

█ Patents to good faith settlers w/ reservation of coal

█ Reopening of withdrawn coal lands for homestead subject to reservation of coal

█ Agricultural Entry Act of 1914

█ Stock Raising Homestead Act of 1916

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Mineral Reservations under the Stock Raising Homestead Act

█ 70 million surface acres entered by homesteaders; many patented

█ Reservation of "all minerals" to gov't

█ Specific provisions regarding mineral exploration and development

SRHA Mineral Development Provisions

█ Holder of mineral rights "may reenter and occupy so much of the surface thereof as may be required for all purposes reasonably incident to the mining or removal of the ... minerals." 43 U.S.C. § 299.

█ Requires execution of bond "to secure the payment of such damages to the crops or tangible improvements of the [surface owner]...." Id.

█ Damage provisions extended to compensate for "damage that may be caused to the value of the land for grazing." 30 U.S.C. § 54.

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Federal Mineral Leasing

█ Mineral Leasing Act of 1920 (as amended) authorizes leases for 10 years with extensions

█ Mineral lands may be leased only if applicable federal land use plan allows it

█ APD must be obtained from BLM

█ Subject to NEPA, ESA, NHPA review

█ BLM regulations apply

█ Bonding and Reclamation

The Private Split Estate Analog

█ History and basis

█ Defining the relationship between surface and mineral owners: A...