CHAPTER 7 RIGHTS-OF-WAY UNDER TITLE V OF FLPMA
| Jurisdiction | United States |
(Nov 1984)
RIGHTS-OF-WAY UNDER TITLE V OF FLPMA
Stoel, Rives, Boley, Fraser & Wyse
Portland, Oregon
The Federal Land Policy and Management Act of 1976 (FLPMA)1 dramatically changed the law governing rights-of-way across federal lands. This paper first addresses why the change was needed and how it affects preexisting rights-of-way. The statutory provisions and implementing regulations of the Bureau of Land Management (BLM) and the Forest Service are then out-lined. The major focus of the paper, however, is on problems which have developed in the administration of the FLPMA right-of-way provisions and how these problems are being addressed by the land management agencies, the Interior Board of Land Appeals (IBLA), and the courts.
A great deal of excellent literature already addresses the question of access to federal lands.2 Many of these articles discuss particular statutes and access problems in
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considerably more detail than is possible here. In addition, no attempt is made in this paper to address several closely related issues which are treated in other papers at this Special Institute, such as the implied right of access to mining claims, access under the Mineral Leasing Act of 1920, access to national forests under statutes other than FLPMA, and access to wilderness lands.
I. Access to Public Lands Prior to FLPMA.
A. In General.
In order to understand the significance of FLPMA, the law governing rights-of-way across federal lands prior FLPMA must be understood. Section 706 of FLPMA repealed 30 different statutes related to rights-of-way on public lands and lands in the national forests.3 These statutes varied widely. Permits, leases, licenses, easements and other forms of formal authorization were all issued. Each statute was narrow in scope, covering just one type of use. These laws provided little guidance to administrative agencies on the terms and conditions of the use, and thus the terms varied widely. Tenure ranged from grants of fee title to permits revocable at will.4 Why the variety? The statutes evolved from early land grants for railroads and other internal improvements which were passed by
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Congress on a case-by-case basis to specific statutes authorizing particular uses, such as canals, ditches, reservoirs, tram roads, electric plants and transmission lines, and communications facilities.5 The Public Land Law Review Commission (PLLRC) recognized the need to revise these diverse laws. It recommended that Congress "consolidate and clarify in a single statute the policies relating to the occupancy purposes for which public lands may be made available."6 Title V of FLPMA is directly responsive to this PLLRC recommendation.7
B. Specific Statutes of Importance
Some of the 30 statutes repealed by FLPMA were used much more frequently than others and therefore were more significant. They are of continuing importance because of the grandfather provisions of FLPMA which are discussed below.8
1. The Act of July 26, 1866 (R.S. 2477). The Act of July 26, 18669 was the first general mining law. Section 1 of this Act gave citizens free license to explore and occupy the mineral lands of the public domain. The Act not only protected
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the access rights of those who had already initiated such rights,10 but it also contained several provisions establishing significant access rights.
The owner of a properly located mining claim acquired certain privileges with respect to working his mine. These privileges, essential to the right to mine, included the right to appropriate water, divert it from its natural channel, and conduct it over the public domain to the place of intended use.11 The right was acquired simply by constructing a canal, ditch, flume, dam, pipeline, or tunnel on public lands of the United States. Title vested upon completion of the work.12
Section 8 of the 1866 Act also granted rights-of-way for highway construction over public lands not reserved for public uses.13 This was a continuing grant by Congress of a right-of-way for the construction of highways over open, unreserved public lands. Many roads established under the authority of this statute still exist and provide access to federal lands. The grant was a "floating" grant which attached and was
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identified upon construction and use. If public lands were open and unreserved, no application for such rights-of-way was required and no notation of them appears upon land office records.
If various state statutory requirements for establishing public highways were met, a road over unappropriated public lands was established.14 The Department of the Interior considers state courts to be the proper forum to decide whether such a public highway was created under state law.15 The acceptance by public use dedicated the road.16 Since to establish such a road it had to be available to all the public, a road constructed across public lands under the authority of this statute was not exclusive. The public has free right of access.17
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The 1872 Mining Law18 repealed Section 1 of the 1866 Act, but Section 8 of the 1866 Act pertaining to public highways remained in effect, as did the provisions granting miners, and others, the right to use public lands for canals, ditches, flumes, and other water improvements.
Because of the continuing uncertainty regarding who actually claims public highways under this statute, the BLM adopted special application rules to encourage claimants to file maps showing the location of these roads.19 Filing does not have any particular evidentiary effect. The rules were designed to facilitate public land management by reducing the number of unauthorized uses of the public lands.
2. The Tramroad Act of 1895. Prior to passage of FLPMA, the Tramroad Act authorized the Secretary of the Interior to permit anyone engaged in mining, quarrying, cutting timber, manufacturing lumber, or furnishing water to use public lands for tramroads, canals, or reservoirs.20 In 1899, the Act was extended to apply to tramroad rights-of-way for wagon roads, railroads, or other highways over national forests.21 The word "tramroad" originally referred only to railroads. After 1938,
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the Department of the Interior construed "tramroad" to include tramways, narrow gauge railroads, and wagon or motor truck roads used in connection with mining, quarrying, logging, and the manufacturing of lumber.22
A grant under the Tramroad Act gave the claimant a right to a tramroad to the extent of 50 feet on each side of a center line. Tramroad rights-of-way were revocable licenses,23 for which rent was owed, and were subject to whatever stipulations the BLM deemed appropriate so long as the conditions imposed did not substantially impair the full enjoyment of the right.24 The holder of such a right-of-way was entitled to exclusive use.25
3. Act of March 3, 1891. During the 1890's Congress passed other laws authorizing the use of public lands for particular uses. The Act of March 3, 189126 granted a right-of-way through public lands to any canal or ditch company and any irrigation or drainage district which filed with the Secretary of the Interior to the extent of ground occupied by reservoirs,
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canals or laterals. The grant included the right to take materials for the construction of canals and ditches.27 Rights-of-way under the 1891 Act are easements, not limited fee interests in the land.28
Rights-of-way under the 1891 Act do not vest in the applicant until the Secretary of the Interior approves the application in accordance with reasonable regulations.29 In reviewing the application, the Secretary may impose conditions to the right-of-way or reject the application outright. If the right-of-way is issued, the holder is entitled to a hearing before the right-of-way is canceled.30
4. Act of March 4, 1911. Rights-of-way for power and communications facilities usually were granted pursuant to the Act of March 4, 1911.31 This Act provided general authority for the head of any land management agency to grant easements for rights-of-way for periods not to exceed 50 years for electric poles, transmission lines, electric distribution
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facilities, poles and lines for communications purposes and receiving, transmitting and relay structures and facilities. These rights-of-way were nonexclusive and were granted subject to the implementing regulations adopted by the respective Secretaries.
The disparity of the terms and conditions of the various rights-of-way is evident from this discussion of the major statutes used to issue rights-of-way across federal lands prior to the passage of FLPMA. Some statutes authorized exclusive use, others did not. Some required formal applications to be filed, other did not. Terms and conditions, the extent of regulation by the federal government and the basic procedural rights to which the holders of the rights-of-way were entitled all varied. As noted by the PLLRC,32 the great disparity between the statutes and the fact that some uses could be authorized under any one of several statutes led to the exercise of broad administrative discretion. The agencies could select the particular statute to apply in any given circumstance and determine the terms and conditions of use. The diverse statutes also caused uncertainty for applicants because it was never clear which statute should be used and what uses could be applied for.
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C. The Trans-Alaska Pipeline — an Example.
The best example of the deficiencies of the pre-FLPMA statutes arose under the right-of-way provisions of the Mineral Leasing Act,33 not the general right-of-way statutes discussed above. During the early 1970's the Alyeska Pipeline Service Company (Alyeska) and the State of Alaska attempted to obtain several rights-of-way for the Trans-Alaska pipeline. Various environmental groups...
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