CHAPTER 7 ACCESS ISSUES AND PUBLIC LANDS RIGHTS-OF-WAY
| Jurisdiction | United States |
(Nov 1997)
ACCESS ISSUES AND PUBLIC LANDS RIGHTS-OF-WAY
Davis, Graham & Stubbs LLP
Denver, Colorado
TABLE OF CONTENTS
Page
I. INTRODUCTION
II. MINERAL LEASING ACT OF 1920
A. Unique Application Requirements
B. Unique MLA ROW Provisions
C. ROWs in Conjunction with Federal Oil and Gas Lease Activities
D. Common Carrier Obligation
III. FEDERAL LAND POLICY AND MANAGEMENT ACT OF 1976
A. Types of ROWs
B. Term
IV. COMPLIANCE WITH OTHER STATUTORY AND REGULATORY REQUIREMENTS
A. NEPA Evaluation
B. Cultural Resource Preservation Acts
C. Permits and Other Filings
V. ROW GRANTS FROM THE BUREAU OF LAND MANAGEMENT
A. Pre-Application Meeting
B. Application
C. Coordination with Other Agencies and Authorities
D. Land Use Planning Considerations
E. ROW Grant, Stipulations and Timing
F. Temporary Use Permits
G. Bonding
H. Rental Payments
I. Monitoring Project Status and Compliance
J. Assignments of Rights
K. Renewals of Rights
L. Abandonment and Relinquishment
VI. LAND-USE AUTHORIZATIONS
A. Permits
B. Leases
C. Easements
D. Proposals and Authorizations
[Page 7-ii]
VII. ACCESS AND EASEMENTS FROM THE U.S. FOREST SERVICE
A. Applications and Authorizations
B. Rental Payments
C. Road Easements
D. Geological and Geophysical Exploration Fee
E. Assignment of Rights
VIII. R.S. 2477
A. Breadth of ROW Grant
1. Legislative Declarations
2. Construction
3. Public Use
B. Validation of a R.S. 2477 ROW
C. State Evaluations of R.S. 2477 Qualifications
D. Proposed Rule Governing Claims to R.S. 2477 ROWs
E. Proposed Legislation Regarding Claims to R.S. 2477 ROWs
F. Authority for Water Ditch and Canal Easements
G. Deferral on Processing of Claims
IX. IMPLIED RIGHT OF ACCESS FOR MINING PURPOSES
X. THE BOTTOM LINE
———————
[Page 7-1]
I. INTRODUCTION
Public lands constitute 29% of the 2.271 billion acres comprising the United States. Federal agencies are responsible for managing 657 million acres. The Bureau of Land Management ("BLM") manages 264 million acres (33% in Alaska), the U.S. Forest Service ("USFS") manages 191 million acres (12% in Alaska), the National Park Service ("NPS") manages 76 million acres (71% in Alaska) and the Fish and Wildlife Service ("FWS") manages 91 million acres (84% in Alaska).2 The vast expanse of public lands naturally gives rise to the need for rights-of-way ("ROW") and access rights across such land.
Rights-of-way and access rights across public lands can be obtained under two primary statutory authorities. Two secondary authorities are also available which involve implied rights of access.3 Section 28 of the Mineral Leasing Act of 1920 (the "MLA")4
[Page 7-2]
grants authority to the Secretary of the Department of the Interior ("DOI") to issue ROWs for pipeline purposes in connection with the transportation of oil, natural gas, synthetic liquid or gaseous fuels, or any refined product produced therefrom. Section 29 of the MLA reserves to the Secretary the right to permit easements or ROWs upon, through or in lands leased, occupied, or used under the MLA.5
The Federal Land Policy and Management Act of 1976 ("FLPMA")6 addresses all types of access, ROWs and easements across public lands except those covered by the MLA.7 Section 501 of FLPMA authorizes ROWs for water facilities, pipeline systems, electrical systems, communication systems and roads.8
Revised Statute (R.S.) 2477,9 which began as Section 8 of the Mining Act of July 26, 1866, established authority for implied ROWs and easements for transportation across public lands. Even though FLPMA repealed the Mining Act of 1866, it did not revoke or terminate any ROWs or easements which historically existed and were in public use at that time.10 The mining industry also enjoys an implied right of access across public lands for exploration and development of minerals under the Mining Law of 1872.11
Rights-of-way on public lands are subject to regulation by various Federal surface management agencies including BLM, NPS and FWS. Regulations promulgated under the MLA and FLPMA cover all Federal public lands except those lands located within the National Park System, lands held in trust for an Indian or Indian tribe, and lands on the
[Page 7-3]
Outer Continental Shelf ("OCS").12 Due to their unique character, this paper does not address access and ROWs on lands within the National Park System (other than R.S. 2477 and general mining access), Tribal lands, the OCS, or inholdings on public lands. The reader is referred to other reference sources with respect to such matters.13
Unless specifically noted to the contrary herein, all references to Federal statutes are to the United States Code Annotated (1994, Cum. Supp. 1997), and all references to Federal regulations are to the Code of Federal Regulations (1996).
II. MINERAL LEASING ACT OF 1920
Section 28(c)(2) of the MLA, as amended, and regulations promulgated thereunder authorize the Secretary of the Interior, through the BLM, to grant or renew ROWs and Temporary Use Permits ("TUP") for construction, operation and maintenance of oil, gas and associated products14 pipelines and related facilities whenever such project crosses lands administered by a Federal agency. The definition of related facilities is very broad and can include airstrips, heliports, roads, yards, fences, storage tanks, bridges, communication devices, structures, ditches and equipment necessary for the construction, operation or maintenance of the pipeline.15
The standard requirements for a ROW or TUP application under the MLA are set forth in Section V below; however, there are a number of unique requirements specific to the MLA which are discussed in this Section II.
[Page 7-4]
A. Unique Application Requirements
An application for a ROW under the MLA is submitted to the BLM on Standard Form 299. The Supplemental Sheet to the Standard Form 299 must be completed and attached for a MLA ROW. The applicant must be citizen of the United States, or an entity organized under the laws of a state.16
Detailed and technical application and notice requirements for ROWs have been established by the BLM and are discussed in Section V below.17 Additionally, the BLM authorized officer has discretion to require detailed construction, operation, rehabilitation and environmental protection plans to be submitted with an application.18 The plans typically include development, contingency and compliance plans for pipeline construction and operation periods. Notice of the application and a description of the project may be published in the Federal Register and a local, general-circulation newspaper.19
B. Unique MLA ROW Provisions
Right-of-way grants under the MLA have certain unique restrictions which differ from ROW grants under FLPMA. The holder of a ROW under the MLA may not use the ROW for any purpose other than a pipeline. The term of a MLA ROW must not exceed 30 years, however the grant may be renewed if the pipeline is operated and maintained in accordance with the provisions of the grant.20 The width of the ROW must not exceed 50' plus the diameter of the pipe.21 Additional widths may be obtained (i) for the protection of the environment or for public safety, or (ii) through the use of TUPs.22
No ROW for pipelines 24" or more in outside-pipe diameter may be granted until a notice of intention to grant has been given by the BLM to the House Committee on Natural
[Page 7-5]
Resources and the Senate Committee on Energy and Natural Resources. This notice is given after the BLM has made a determination to approve the associated application.23
C. ROWs in Conjunction with Federal Oil and Gas Lease Activities
The standard form Federal oil and gas lease grants the lessee the right to build and maintain necessary improvements and roads on the leased lands in order to enjoy the full benefit of the lease.24 The lease also includes a reservation by the United States of the right to permit easements or ROWs as may be necessary or appropriate for the lands covered by the lease. This reservation is consistent with Section 29 of the MLA, which requires the Secretary to reserve in any permit, lease occupation or use, the right to permit easements or ROWs.25
Production facilities and lessee-owned gathering lines located within the lands covered by a Federal oil and gas lease under the MLA are not subject to the provisions of Section 28 of the MLA, but rather are subject to the authority of the Secretary to regulate oil and gas operations under the MLA.26 An Application for Permit to Drill (an "APD") under a Federal oil and gas lease will be treated as a ROW application for access roads when off-lease ROW needs are included in the APD.27 All production facilities located on a lease or any associated production unit should be authorized under an APD or Sundry Notice for the lease.
A MLA ROW authorization will be required for (i) oil and gas facilities lying outside of a lease or unit boundary, (ii) facilities located downstream of the custody transfer (sales) point (whether on or off lease), and (iii) facilities where all or any portion is owned by any party other than the lessee.28 If the lease boundaries change or if there is a contraction of any associated production unit, all facilities originally authorized by, but no longer covered by the lease, will require appropriate ROW authorization from the BLM as set forth in Section V below.
[Page 7-6]
D. Common Carrier Obligation
One of the most confusing aspects of a MLA ROW is that it is subject to common carrier provisions.29 As a common carrier, the oil or gas pipeline must be constructed, operated, and maintained to accept, convey, transport or purchase without discrimination, all oil, or gas, delivered to the pipeline, without regard to whether it was produced on Federal or non-Federal lands. The DOI has authority to determine the proportionate amounts of...
To continue reading
Request your trial