CHAPTER 5 CURRENT ISSUES IN ACQUISITION AND MAINTENANCE OF DEVELOPMENT RIGHTS ON PUBLIC LANDS
| Jurisdiction | United States |
(Nov 1997)
CURRENT ISSUES IN ACQUISITION AND MAINTENANCE OF DEVELOPMENT RIGHTS ON PUBLIC LANDS
C. E. Brooks & Associates, P.C.
Denver, Colorado
TABLE OF CONTENTS
Page
I. INTRODUCTION
II. WILDERNESS: PROPOSED OR DE FACTO.
A. Wilderness Designation Pursuant to the 1964 Wilderness Act.
B. BLM Wilderness Study Program: Inventory, Study and Recommendations
C. Reconsideration of Wilderness Inventory and Study Decisions.
1. Public Land "Abeyance" Management.
2. A Second Wilderness Inventory.
D. Identifying the Existence of Wilderness Issues.
1. Talk to Wilderness Coordinator at the BLM State Office Level.
2. Evaluate Any Published Wilderness Proposals.
3. Freedom of Information Act ("FOIA") Request.
4. Other Sources.
E. Wilderness Surrogates.
1. Wild and Scenic River Designation.
2. American Heritage Rivers Initiative.
3. Antiquities Act of 1906.
F. Land Exchanges and Other Transfers.
G. Access Issues.
III. COST RECOVERY: THE COST OF DOING BUSINESS ON THE PUBLIC LANDS IS ABOUT TO INCREASE.
Sources of Statutory Authority.
1. Independent Offices Appropriations Act.
2. FLPMA.
3. DOI Manual Direction.
4. Case Law.
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B. Highlights and Issues.
1. Fees Imposed on Appeal Rights.
2. Possible Permit Application Costs.
3. Inspection and Enforcement.
4. Scope of Doctrine.
C. Increased Fees for Reclamation Bonds.
D. Revisions to Non-degradation Regulations
IV. CONCLUSIONS AND RECOMMENDATIONS
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I. INTRODUCTION.
While most land personnel and company executives religiously check plat books and land management plans for possible land withdrawals or classifications which limit mineral development, they often find that it is more difficult to determine if there are other controversies or proposals which could impede development and thus affect the decision to either acquire or pursue a particular prospect or play. Acquiring and maintaining the right to develop minerals on lands owned by the United States entails a number of restrictions, including lease stipulations, surface rights, competing mineral rights arising from multiple mineral development policies, or terms and conditions in a mine plan of operations.
This paper addresses land management policies or issues, which are often outside the scope of the average title search or records check, but which can directly affect development of a mining claim or a mineral lease. These include (1) wilderness related issues, other than the well-documented wilderness designations or wilderness study areas, such as abeyance management or new wilderness inventories; (2) other preservation mechanisms, such as the Wild & Scenic Rivers Act, the American Heritage Rivers Initiative, and the Antiquities Act; and (3) possible clouds on mineral development, such as proposed land exchanges or leases under the Recreation and Public Purposes Act. The second half of the paper explores the threat of significant increases in the cost of doing business on the public lands brought about by cost recovery and related rulemaking proposals.
This paper is addressed to public lands managed by the Department of the Interior ("DOI"), Bureau of Land Management ("BLM"), and starts with the premise that the company or mineral rights owner owns or leases or is about to own or lease public land minerals, either
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through an unpatented mining claim,1 mineral lease,2 or title to all or some of the underlying minerals.3
II. WILDERNESS: PROPOSED OR DE FACTO.
While the public land records ostensibly reflect restrictions on mineral development, such as wilderness designation, in recent years, land personnel have discovered that those records do not tell the entire story. Rather than being the final word on issues affecting mineral development, these records are now only the starting point. This paper identifies other non-public land management policies which mimic wilderness protection and can interfere with or complicate mineral development. The difficulties in ferreting out these policies and the underlying legal issues often place mineral lessees or mining claim owners in the difficult position of discovering the controversy only after beginning an exploration or lease acquisition program.
A. Wilderness Designation Pursuant to the 1964 Wilderness Act.
Pursuant to the Wilderness Act of 1964, Congress can designate federal lands to be preserved for "wilderness" defined as:
an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain. An area of wilderness is further defined to mean...an area of undeveloped Federal land retaining its primeval character and influence, without permanent improvements or human habitation, which is protected and managed so as to preserve its natural conditions and which (1) generally appears to have been affected primarily by the forces of nature, with the imprint of man's work substantially unnoticeable; (2) has outstanding
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opportunities for solitude or a primitive and unconfined type of recreation; (3) has at least five thousand acres of land or is of sufficient size as to make practicable its preservation and use in an unimpaired condition; and (4) may also contain ecological, geological, or other features of scientific, educational, scenic, or historical value.
16 U.S.C. § 1131(c).
The Wilderness Act directs the Forest Service, the National Park Service and the U.S. Fish and Wildlife Service to identify roadless areas of more than 5,000 acres and which have wilderness character and to make recommendations for additional wilderness designation.4 The Forest Service's study process, the "Roadless Area Review and Evaluation" ("RARE") I and II, was initially conducted on a national scale. The contentious issues of competing land uses and potential loss of access to mineral deposits and energy sources made the process controversial. When the Ninth Circuit set aside the RARE II final environmental impact statement ("EIS") in 1982,5 the Forest Service decided to abandon the large scale analysis process and proceeded to re-evaluate possible wilderness recommendations as part of the land use planning process for the National Forests.6 This approach survived Ninth Circuit scrutiny.7
Opponents of the Wilderness Act voiced the concern that wilderness designation would lock away significant mineral and energy resources. Consequently, Congress postponed the withdrawal of the federal lands from mining and mineral leasing to allow mineral exploration and development.8 While little, if any, significant mineral production has occurred in designated wilderness areas, the extension of time in the Wilderness Act led to the development of mineral potential data which identified high mineral potential. In many cases, those roadless areas were not designated wilderness.
B. BLM Wilderness Study Program: Inventory, Study and Recommendations
The Wilderness Act did not direct the BLM to conduct a similar wilderness study on public lands it manages, indeed, the Wilderness Act does not even refer to public lands.
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Nevertheless, the BLM exercised its discretion to manage certain areas as "primitive areas." The primitive area designation and management was in itself controversial, since no specific statute authorized BLM to manage public lands for wilderness purposes.9 Between 1964 and 1976, when Congress passed FLPMA, BLM managed the public lands pursuant various public land laws, such as the Taylor Grazing Act ("TGA"),10 , the Classification and Multiple Use Act,11 as well as the applicable mineral development laws. While the TGA directed BLM to manage the public lands to conserve the resources and protect the domestic livestock industry, and BLM was directed to meet multiple use management for public lands not identified for disposal, there was no specific authority for BLM to identify or manage public lands as primitive areas.
The question was resolved when Congress adopted Section 603 of FLPMA,12 which directed BLM to inventory the public lands and identify roadless areas of greater than 5,000 acres which had wilderness character within 15 years.13 BLM was required to prepare mineral surveys for each area and the Secretary was to complete his recommendations to the President by October, 1991.14
Following the adoption of FLPMA in 1976, BLM proceeded to inventory all of the public lands to identify areas which were greater than 5,000 acres, roadless, and which had wilderness qualities as defined in the 1964 Wilderness Act. The wilderness inventory was guided by the Wilderness Inventory Handbook, and later revisions thereto in the form of Organic Act directives.15 The initial wilderness inventory evaluated virtually all of the 152 million acres of
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public lands,16 and determined which public lands "clearly and obviously" lacked wilderness characteristics.17
BLM then evaluated the remaining public land units to determine whether the public lands should be studied as wilderness. This process, called the intensive wilderness inventory, consisted of two different determinations, whether the lands were "roadless", and whether they had wilderness character. The question of whether the roads were actually roads was controversial, because BLM limited the definition of "roads" to those routes built and maintained by mechanical means.18 This definition excluded many roads which appeared to have been maintained largely by the passage of vehicles, even though the routes were widely used.
If a road met BLM's definition, the wilderness review unit boundaries were adjusted to exclude the road without disqualifying the entire unit from wilderness classification (a process called "cherrystemming").19
If a review unit was roadless, then BLM also determined whether the units had wilderness characteristics, such that the area was...
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