CHAPTER 7 URANIUM EXPLORATION AND THE FISSION OF THE PERMIT SYSTEM
| Jurisdiction | United States |
(Nov 1976)
URANIUM EXPLORATION AND THE FISSION OF THE PERMIT SYSTEM
Cogswell, Chilson, Dominick and Whitelaw
Denver, Colorado
TABLE OF CONTENTS
INTRODUCTION 7—1
I. JURISDICTIONAL COMMENTARY 7—2
A. Vested Interests 7—2
B. U.S. Supreme Court Decisions of June, 1976 7—3
C. Pending Litigation 7—4
II. FEDERAL EXPLORATION PERMITS 7—7
A. Forest Service 7—7
B. Bureau of Land Management 7—11
C. U.S. Energy Research and Development Administration 7—16
D. U.S. Environmental Protection Agency 7—16
E. National Environmental Protection Act of 1969 7—17
III. STATE EXPLORATION PERMITS 7—17
A. State of Wyoming 7—18
B. State of Colorado 7—21
C. State Implementation Plans Under FWPCAA of 1972 7—22
D. State "Mini-NEPA's" 7—23
IV. COUNTY EXPLORATION PERMITS 7—23
A. Moffat County, Colorado 7—24
B. Rio Blanco County, Colorado 7—25
V. CONCLUSION 7—28
APPENDIX
Synopsis of Selected State Requirements for Uranium Exploration Permits 7—29
Footnotes 7—33
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[Page 7-1]
The Oil Embargo of 1973 and the ensuing "energy crisis" have generated a scramble for all forms of energy reserves. In particular, the previously dormant uranium industry has awakened, and the past few years have witnessed a marked revival of uranium exploration, especially with respect to the federal public domain ("public domain").
This revival of exploration activity has also coincided with an environmental consciousness in America, which was not present during previous boom periods, and these two factors have occasioned a proliferation of statutes and regulations at all levels of government. The federal government has been particularly active in this regard, as the great bulk of our untapped mineral reserves are to be found within the public domain. In turn, the states, within whose boundries these vast tracts of public domain are located, have become increasingly vocal concerning their vested interest in what happens both during and after mineral exploitation. As many of these same states did not heretofore have effective, or even any, mineral regulatory and reclamation statutes, there has been a recent flood of legislative activity, in order to cope today with what are envisioned as tomorrow's realities. While such enactments have been more visible on the federal and state levels, the concern over threatened impact has not been lost upon the respective counties. All of this, then, has combined to have a very dramatic impact upon the exploration phase of uranium development and makes this paper quite topical.
The ensuing discussion presumes that a given operator has legally acquired the uranium interest or play concerned. This presumption remains constant, regardless of whether the uranium interest has been acquired by: (i) purchase of feehold; (ii) location under the 1872 General Mining Laws on public domain1 ; (iii) leasing of federal lands under Reorganization Plan No. 3 of 19462 or the Atomic Energy Act of 19543 , state lands, or feehold lands; or (iv) an exploration license with an option to lease or an option to purchase. As the conflicts and problems which are likely to be encountered between surface and mineral owners will be discussed separately during this Institute, such prospective problems will not be addressed in this paper.
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The author's purpose is solely to identify or flag those kinds of preliminary or threshold exploration permits which may be required at the federal, state, or local level. No attempt will be made to fully digest the procedures and requirements attendant to exploration activities thereunder, or to examine the morass of additional permits which would be required during subsequent stages of development. However, in an effort to provide the reader with an insight and appreciation of the degree of detail which may be required to obtain a respective exploration permit, the full text of selected application provisions will be quoted. Consequently, the general thrust of this paper will be pragmatic, rather than an academic treatment of the subject.
I. JURISDICTIONAL COMMENTARY.
A. Vested Interests.
The mere identification of surface and mineral ownership is just the beginning. As intimated earlier, the goals and vested interests of the various governmental entities may be quite dissimilar or even contradictory. You are also likely to find that the governmental triumvirate has differing philosophies concerning the extent of their respective jurisdictions. If the public domain is involved and if you were to inquire of the Solicitor's Office as to what laws and regulations would be determinative in the exploration for uranium, you would likely be informed that the federal government has "proprietary" or "legislative" jurisdiction in most cases and even has "exclusive" jurisdiction in certain other instances. If you were to ask one of the various state Attorneys' General, you would probably be informed that the respective state has at least "concurrent" jurisdiction with the federal government. If you were to check with a given County Attorney or Assistant County Attorney for Land Use, you would likely be chided to the effect that "we don't care what the feds or the state bureaucrats say, you had better believe that we have a vested interest in what takes place — or doesn't — within our county."
If the statutes or regulations of a given state or the ordinances of a particular county are in "direct" conflict with a federal right or interest to explore and mine, there is general concurrence that federal legislation will control. However, this is seldom the situation. Rather, it is more likely that such non-federal statutes or regulations may disclose varying degrees of conflict with, may be multiplicious of, or may even be more stringent than federal laws, regulations or standards, but do not preclude or prohibit the federal use and management of the public domain. In this latter situation, the law is disturbingly uncertain.
[Page 7-3]
If the uranium operator should decide to play it safe and pay homage at all three levels of government, the real crunch is likely to come in the politics and timing of all of this. If public domain is involved and if some form of a federal permit/approval is required, one must obviously comply with federal statutes or regulations first. Until this is done, there is not a "go or no go" decision. While the prospective operator would probably have been working with the state agencies concurrent with satisfying any federal requirements, it is only upon receiving the federal permit/approval, with its attendant terms, stipulations and conditions, that a final submission can be made to a given state. In addition, and presuming that the appropriate county officials have long since been contacted and informed as to the nature and scope of the proposed project, it is only upon obtaining your federal and state permits/approvals that you have a program to formally submit for local review. It is this necessity for a stepped or sequential submission of permit applications that can be frighteningly time consuming. While the author acknowledges that it is possible to run the gauntlet at all three levels concurrently and that this will generally be done to a certain degree, one does run the crippling risk of ending up with inconsistent or at the very least, overlapping standards, stipulations, or conditions toward getting on with your exploration activities.
B. U.S. Supreme Court Decisions of June, 1976.
If the reader has begun to develop mental reservations as to how such a critically important issue as the jurisdiction to regulate and control mineral activities on the public domain can remain unresolved in November, 1976, the author can only state that there are numerous mineral practitioners who share your concern and frustration. Having labored with clients over this perplexing uncertainty, the four decisions of the United States Supreme Court in June of this year did provide some encouraging insight into current judicial thinking. The four cases were: U.S. v. Cappaert4 ; Hancock v. Train5 ; Environmental Protection Agency v. California ex. rel. State Water Resources Control Board6 ; and Kleppe v. New Mexico7 . While the first three cases basically came down on the side of reenforcing federal interest vis-a-vis state interest, the more important case for this discussion is Kleppe v. New Mexico. Therein, New Mexico asserted that the Wild Free-Roaming Horses and Burrows Act exceeded Congress' constitutional powers, since the Property Clause of the U.S. Constitution8 only granted the power to dispose and make incidental rules regarding the use of public property and the power to protect federal property. Without belaboring the factual background of the case, the Court concluded that the Property Clause "gives Congress the power to determine what are 'needful' rules 'respecting' the public lands."9 In holding that this power is without limitations, the Court stated:
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"And even over public land within the States, '[t]he general Government doubtless has a power over its own property analogous to the police power of the several States, and the extent to which it may go in the exercise of such power is measured by the exigencies of the particular case.' Camfield v United States, 167 US 518, 525, 42 L Ed 260, 17 S.Ct. 864 (1897). We have noted, for example, that the Property Clause gives Congress the power over the public lands 'to control their occupancy and use, to protect them from trespass and injury and to prescribe the conditions upon which others may obtain rights in them...' Utah Power & Light Co. v. United States, 243 US 389, 405, 61 L Ed 791, 37 S.Ct. 387 (1917). And we have approved legislation respecting the public lands '[i]f it be found necessary for the protection of the public, or of intending settlers [on the public lands].' Camfield v United States 167 US, at...
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