CHAPTER 5 ACCESS TO WESTERN COAL RESERVES
| Jurisdiction | United States |
(Mar 1973)
ACCESS TO WESTERN COAL RESERVES
and Hugh Hazelwood
American Metal Climax, Inc. (Amax Coal Company Division)
IndianaPolis, Indiana
The following decisions which have been handed down subsequent to the preparation of this paper have a very significant effect on the thesis of this paper:
1. Isaac Walton League v. St. Clair 4 ERC 1864, D. Minn., January 5, 1973
2. Wilderness Society v. Morton, 4 ERC 1977, C.A. D.C., February 9, 1973
3. Davis v. Morton, 4 ERC 1735 (10th Cir., November 23, 1972)
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INTRODUCTION
Today's America is experiencing the pressures of population growth and economic affluence as never before. This combination has generated an appetite in this country which threatens to exhaust our resources. For the first time it has become apparent that there is a limit to the amount of abuse the ecosystem will take without suffering irreversable damage. This awareness has led to demands that those institutions capable of taking steps to prevent an ecological disaster do so. This has put stresses and strains on these institutions in places where heretofore none have existed. Quite naturally, this has given rise to conflict. One of the conflicts which must be resolved concerns access rights to public lands remaining open to mineral entry under the General Mining Law of 1872.1 This paper will briefly review this conflict and discuss its possible impact on the development of Western coal reserves.
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LANDS OPEN TO MINERAL EXPLORATION
The parties to this controversy, as one might expect, are the miner or mineral developer on the one hand, and the conservationist or environmentalist on the other. The miner's position is that under the General Mining Law of 18722 , the public lands remaining open to mineral entry are free and open to exploration and occupation, and that a basic concept implicit in the right to freely enter and explore the open public lands for minerals and to purchase and develop them when discovered is the unfettered right to access across those lands which is reasonably required to explore and develop those lands3 .
The conservationist position is based upon the general proposition that the agencies which have jurisdiction over the public lands have discretionary power to grant or deny requested benefits or to qualify grants or benefits making them subject to conditions or stipulations deemed by them to be in the public interest4 .
The determination of exactly which lands in the public domain remain open to mineral exploration and development could be the subject of a paper in and of itself, but it
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is not the subject of this paper. While it is conceded that it may be a gross simplification of some of the underlying issues involved in this controversy, for purposes of this paper the discussion will be limited to lands in the public domain which have not been withdrawn, reserved or restricted to mineral entry.
SOURCE OF THE MINER'S RIGHT OF ACCESS
The source of the miner's right of access to his claim under the General Mining Law of 18725 seems to be a source of controversy in and of itself. One theory is that access is obtained only under RS§2477, which was originally a part of an Act Granting The Right Of Way To Ditch And Canal Owners Over Public Land And For Other Purposes, passed by Congress on July 26, 18666 .
The more commonly accepted theory is that the miner obtains his access rights to build a road by implied authority from Congress7 . This theory
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probably has its roots in the common law doctrine of the dominate mineral estate and its general acceptance is probably mainly attributable to Lindley's writings8 . However, both of these theories overlook 30 USC § 43, which was originally Section 5 of the Act of July 26, 18669 . This Section reads as follows:
"In the absence of necessary legislation by Congress, the local legislature of any State or Territory may provide rules for working mines involving easements, drainage and other necessary means to their complete development."
The importance of this often overlooked Section is simply that it very clearly provides for State regulation of mining easements in the absence of conflicting Federal legislation. It will become apparent later during this discussion that there are many who are of the opinion that there is an absence of Federal legislation in this area.
Thus, perhaps it is the states who should be regulating miner's access rights or "easements" over public lands rather than the Federal Agencies or the miner. It is interesting to note that even if one
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accepts the implied easements theory under the rule of Erie vs Thompkins, 304 U.S. 64, 82 Led. 1188, 58 S. Ct. 817, 114 A.L.R. 1487, the law of the state in which the access road is located would be consulted to determine the miner's access rights.
MINER'S MAJOR CONCERNS
The miner's major concern in this controversy is that he will be denied initial access to the area and thus valuable mineral resources will be locked up forever simply because the Agency in charge of the land has placed unreasonable restraints on exploration activity10 . Three decisions which illustrate this concern are West Virginia Highlands vs Island Creek [CA4] 2 ERC 1422, and Archer, [INT. DEPT. BLA] 2 ERC 1589, and United States vs Foresyth [D.C. COLO] 2 ERC 1159.
In the West Virginia Highlands11 case, the West Virginia Conservancy organization sought and obtained a temporary injunction in the Federal District Court in West Virginia to prohibit Island Creek from building access roads for test drilling in Monongahela National Forest, located in West Virginia.
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Island Creek controlled the mineral rights under the area, but the conservationist maintained that the Company's mineral rights didn't include the right to build access roads. They further maintained that the Forest Supervisor could not grant the right to build access roads for mining without the submission of an environmental impact statement under Section 102(c) of the National Environmental Policy Act12 .
There was another issue in this case involving the Forestry Service's plan for administration of the area under the Multiple Use Sustain Yield Act of 196013 . The plan provided for the removal of timber which was opposed by the Conservationist. They had filed a petition and appeal with the Regional Forester challenging the plan. As a part of their argument for injunctive relief, the Conservationist maintained no action should be taken pending review of their petition and, in any event, submission of an environmental impact statement under Section 102 of the National Environmental Policy Act14 was required before the timber could be cut. The Appellate Court affirmed the District Court's decision in granting the temporary injunction. The Court's reasoning was based on the fact
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that the District Manager failed to establish that he would suffer more than negligable harm as a result of a delay in timber cutting and the Conservationist's position with respect to the wilderness characteristics of the area being placed in jeopardy by road-building in the area. Prior to the Appealate Court's decision, Island Creek had obtained permission to use pack animals to establish five drilling sites in the area, and from the information obtained had made a decision to withdraw its appeal. The case is still pending final deposition, but since Island Creek's withdrawal, the issue of the requirement of an environmental impact statement for mining access roads has become moot.
The Archer 15 decision is an opinion by the United States Department of Interior, Office of Hearing and Appeals, Interior Board of Land Appeals. In Archer 16 , the Appellate were prospecters who refused to sign a document captioned "General Requirements" as a condition precedent to the issuance of a prospecting permit. The Appellate contended the requirements were "unreasonable". In ruling the Appellate had failed to establish that the requirements were unreasonable, the Board stated
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that "such requirements are reasonably related to the environmental ethics of the Department and to the obligations of the Department under the National Environmental Policy Act of 196917 ..."
In Foresyth 18 , the miner had located twenty-five (25) mining claims pursuant to State law within Pike National Forest in Colorado. The claims were based on surface samples assayer and visual observations. The miner was in the process of constructing an access road for drilling equipment when a representative of the Forest Service appeared on the mining site and stopped the work. After a meeting between the miner and the Forest Service, Colorado Contest #425 disputing the validity of the claim was initiated by the Bureau of Land Management. Shortly after the contest was initiated, the Forest Supervisor submitted a request for withdrawal of the land in question to reserve said land for recreational and scenic purposes. Final action on the withdrawal proceedings was withheld because of the penancy of the contest proceeding. As a part of the contest proceeding, the government and the miner undertook a joint-collaborative sampling and assaying program, involving core drilling pursuant to
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a contest pre-hearing conference order. The object of this program was to determine the existence of a valid "discovery" within the meaning of the mining laws. Following the completion of this program, the...
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