CHAPTER 4 SURFACE USE RESTRICTIONS IMPOSED BY STATE LAW AND STATE LANDS SURFACE USE AND ACCESS
| Jurisdiction | United States |
(Nov 1984)
SURFACE USE RESTRICTIONS IMPOSED BY STATE LAW AND STATE LANDS SURFACE USE AND ACCESS
Davis, Graham & Stubbs
Denver, Colorado
The reciprocal rights of surface and mineral owners,1 particularly as they pertain to access,2 have proven to be among the most longstanding and intractable problems of natural resources law. This paper addresses two limited aspects of this problem. First, state legislation bearing on traditional common law rights of surface and mineral owners is discussed. Second, surface and access rights on lands owned and managed by the respective states is considered.
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I. STATE LEGISLATION
A. Common Law Rights
The severance of surface and mineral estates may arise by instruments of grant or reservation. These instruments may establish the respective rights of surface and mineral owners with great specificity, and such accommodations are generally binding on the parties and their successors except when determined to violate established public policy.3 Most often, however, the rights of surface and mineral owners are not established with particularity because, at the time of severance, it is unclear when minerals may be developed, what minerals may be produced, where mineral production may occur, what surface uses may be necessary for mineral development, and what competing uses will be made of the surface estate at the time of mineral development.4 Consequently, not infrequently the instrument of severance is completely silent on the respective rights and obligations of the surface and mineral owners.
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In recognition of the fact that practical enjoyment of the mineral estate requires certain surface uses necessary to permit mineral development, those surface uses are authorized by law even if not expressly provided in the instrument of severance.5 Perhaps because the surface estate owner cannot entirely preclude all surface use by the mineral estate owner, the doctrine has traditionally been stated in terms of the "dominance" of the mineral estate over the surface estate.6 That euphemism has never accurately described the reciprocal relations of surface and mineral owners; at common law the mineral owner could generally conduct only surface operations that were "reasonable and necessary" to permit mineral exploration and development.7 Surface uses that were not reasonably related to mineral operations or that were conducted in a negligent manner were actionable.8
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Many jurisdictions have refined these rules in recent years. While early cases frequently involved surface owner attempts to prevent a mineral owner from conducting surface operations necessary for mineral development,9 more recent cases have turned on surface owner efforts to require that mineral operations be tailored to and made compatible with uses made of the surface at the time mineral development commences.10 The courts have shown a consistent tendency to consider such accommodations and have held that mineral developers must carry out surface operations with "due regard" for ongoing surface activities and, where reasonable, design and conduct those operations to minimize surface estate impacts.11 For instance, a mineral developer may be required to install pumping units to accommodate a surface owner's irrigation system12 or to use a reasonable route of access that tends to minimize adverse surface use effects.13
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B. Broad Public Interest Legislation
The reciprocal rights of surface and mineral owners have been substantially redefined by federal, state, and local legislation enacted over the past two decades. This legislation has generally taken the form of enactments which effectively adjust the respective rights of surface and mineral owners to achieve broader public policies consonant with valid exercises of federal commerce clause and state and local police power rights. Two general legislative regimens are noteworthy.
First, state and local governments have enacted comprehensive land use and zoning requirements which restrict the time, place, and manner in which surface activities may be conducted.14 These restrictions, which have proliferated in
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the western United States in recent years, have increasingly focused on mineral development activities.15
Second, federal and state governments have enacted comprehensive environmental protection legislation.16 These requirements impose detailed air,17 water,18 waste disposal,19 and reclamation requirements20 on surface and mineral development. Although the initial thrust of most of this legislation was directed at industrial uses, increasing attention has recently been paid to mineral development activities21 and a broader range of those activities have
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been brought within the ambit of these regulatory requirements.22
C. Specific Legislation Adjusting Surface and Mineral Owners Rights
Recent interpretations of common law rules by the judiciary, and enactment of public policy legislation by legislatures, have essentially altered, as a practical matter, the respective rights of surface and mineral owners. Regardless of whether those developments are viewed as in the public interest,23 they have obviated in large part the need to enact further legislation pertaining directly to surface and mineral owner rights. Where local governments and the courts have established regimens by which the reasonableness of surface operations for mineral development can be evaluated, and where the more hazardous aspect of those activities are highly regulated, legitimate surface owner interests are generally protected.
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An increasing number of state legislatures, however, including those of states in which substantial mineral operations are undertaken,24 have enacted legislation bearing on the respective rights of surface and mineral owners. Those state statutes are discussed below.
1. Exploration Activities
Mineral exploration activities have traditionally not been the subject of direct state legislation. Instead, the legal parameters of those activities have been established by the legal regimens described above and other common law principles.25
In the 1970s, however, a number of western states enacted comprehensive legislation addressing hard rock and surface coal mining.26 As one aspect of that legislation, certain types of exploration activities were sometimes regulated.27 Typically, the mineral explorationist was
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required to obtain an exploration permit from a designated permitting authority prior to the conduct of such operations.28 Exploration permits were frequently issued under these statutes upon approval of a general reclamation plan and upon posting of a required reclamation bond for exploration activities.29 Although the surface estate owner is generally authorized under the statutes to participate in the permitting process, that right is no greater than that afforded other members of the public.
A number of states have gone substantially further; they have vested the surface owner or occupier with certain rights over exploration activity approval. In Montana, for instance, mineral exploration activities (except those limited to oil and gas) requiring use of "mechanical equipment other than hand tools"30 may be conducted only after compliance with "The Landowner Notification Act."31 Under that statute, except when such activities are specifically authorized by lease or permit,32 the mineral explorationist must present the "owner or manager of the surface":
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notice in writing, accompanied by a map showing the specific locations involved, of such person's intent or desire to enter upon such land, which will sufficiently disclose the plan of work and operations, including contemplated measures for the protection and restoration of the land and waters, to enable the owner or manager of the land and any person holding a possessory right to such land to evaluate the extent of disturbance contemplated and the effectiveness and sufficiency of the protection and restoration measures planned.33
Mineral exploration activities cannot be conducted until written consent is obtained from the surface owner,34 unless the parties have previously reached a specific agreement to the contrary.35 Similarly, in South Dakota, a mineral explorationist must file a notice of intent to conduct exploration activities and a plan of reclamation with the Department of Water and Natural Resources before operations are commenced.36 Even if the state notification has been given, however, exploration activities cannot be undertaken before "consultation with the surface owner and persons in possession of the surface."37 In the context of that consultation, the surface owner is authorized by law to
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designate in writing "preferences" for the reclamation of the land and "reasonable restrictions regarding travel across on the property."38 Under the South Dakota statute, these restrictions are generally binding on an explorationist.39
Forms of these statutes have also been enacted for exploration involving oil and gas, notwithstanding the fact that surface disturbances arising from such activities are generally less substantial than those involving hard rock or coal exploration. In North Dakota, for instance, "geophysical exploration activities"40 may be conducted only after posting a satisfactory bond with the State Industrial Commission,41 filing a notice of intent with the County Commission,42 and obtaining an "exploration permit" from the County Commission which sets out statutory requirements and contains other restrictions which the County Commission determines are necessary.43 Similar requirements have been imposed by statute in Montana.44
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2. Development Activities
The evolution of state legislation pertaining to mineral development activities parallels that for...
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