CHAPTER 8 ACCESS FOR MINERAL EXPLORATION AND DEVELOPMENT AFTER FLPMA
| Jurisdiction | United States |
(Nov 1984)
ACCESS FOR MINERAL EXPLORATION AND DEVELOPMENT AFTER FLPMA
Sherman & Howard
Denver, Colorado
I. Introduction
It has long been recognized that the owner of an unpatented mining claim has a right of access to that claim across federal lands. That right flowed from both express and implied grants in the mining laws. However, the Federal Land Policy and Management Act of 1976 ("FLPMA") repealed the express right-of-way grant on which miners had relied. It is now also recognized that the federal government has the right to regulate, to some degree, the manner in which operations are conducted on unpatented mining claims and the means of access over federal lands to such claims. Within the past decade both the Bureau of Land Management ("BLM") and the Forest Service have adopted "surface use" regulations which, among other things, affect access to mining claims. A modern mining operation needs access rights not only to haul men, ore and equipment, but also for electric power, communication facilities, pipelines, water supply systems and other uses. This paper examines the basis of the miner's right of access, the authority for and extent of regulation of access by the BLM and the Forest Service, and the evolving law defining the limits of permissible federal1 regulation.
II. The Miner's Rights of Access
The origin and evolution of miners' rights of access to mining claims located under the general mining laws has been well documented by others,2 and will not be analyzed here. However, these matters need to be sketched in enough detail to set the stage for a discussion of the the significant changes made by FLPMA with respect to rights of access to federal lands.
[Page 8-2]
Express Rights
The mining laws have always provided both express and implied rights of access. The 1866 Lode Law3 formally opened the public land to mineral exploration and occupancy. Section 8 of that Act granted rights-of-way for highways constructed over public lands not previously reserved for public use.4 A miner could obtain the benefits of the right-of-way granted by Section 8 of the 1866 Act only by constructing a highway. No application or approval from the government was required, nor was any government agency empowered to impose conditions on the exercise of a right-of-way grant. However, the miner is not entitled to exclusive use of a road constructed pursuant to Section 8 of the 1866 Act, and members of the public cannot be charged a fee to use such a road.5
The 1866 Act also granted the right to appropriate water and conduct it across the public domain to its place of intended use.6 As with a Section 8 highway, rights under Section 9 of the 1866 Act were acquired by constructing a canal, ditch, flume, dam, pipeline or tunnel over or across the public lands. When Congress passed the 1872 Mining Law, it left intact the provisions of Sections 8 and 9 of the 1866 Act.
In 1895, Congress granted miners the right to acquire an exclusive right-of-way for a "tramroad" over public lands on the filing and approval of an application with the government.7 In creating the national forest system in 1897, Congress provided that nothing in the Forest Service Organic Act shall "prohibit any person from entering upon such national forests for...properly locating and developing the mineral resources thereof."8 Two years later the Tramroad Act was extended to national forest lands.9
Implied Rights
The 1872 Mining Law provides the basis for a miner's implied rights of access in its declaration that all valuable mineral deposits in public lands are to be "free and open to exploration and purchase" and the lands in which they are found to "occupation and purchase."10
A 1959 Solicitor's Opinion confirmed that the mining laws contain an implied grant to locators of mining claims of free access across public domain lands.11 The opinion described roads built by miners without the grant of an express right-of-way as "roads constructed under clearly implied statutory authority as ways of necessity."12
Subsequently, in Alfred E. Koenig 13 the IBLA held that the owner of a mining claim was entitled to construct an access road across public lands without prior authorization from the Bureau of
[Page 8-3]
Land Management. It was clear from the record in this case that the road provided the only access to the claim, and that the Board's decision was premised on the assumption that the claimant did not seek the right to exclude the public from the road.14
Thus, prior to its repeal by FLPMA a miner could rely on either the express grant of Section 8 of the 1866 Act or the implied grant contained in the general mining laws as sources of authority for the construction of means of access to mining claims across public lands.15
Courts interpreted Section 8 of the 1866 Act as a present grant of a right-of-way which became effective upon acceptance by the construction of a highway.16 A road constructed under Section 8 of the 1866 Act effectively withdrew the land through which it passed from the public domain, and any subsequent disposition of those lands was subject to the burden of the road.17 In United States v. 9,947.71 Acres of Land, the court ruled that a road constructed pursuant to Section 8 of the 1866 Act was a "property right" the taking of which required compensation, holding that at the time of construction:
the title of the United States to the right-of-way passed from the United States invested in defendant's predecessors and ceased to be a portion of the public domain without any further action by either or by any public authority; [and] that, any subsequent disposition of the fee title of the land over which it passed was subject to such right-of-way....18
It is not entirely clear, however, that this logic would apply with equal force to a means of access established pursuant to the implied grant of access contained in the mining laws. Unlike a highway constructed pursuant to the now-repealed Section 8 of the 1866 Act, a means of access constructed under an implied right is not based upon an express in praesenti grant. Thus, it might be argued the construction of such a road or other means of access pursuant to an implied grant does not withdraw or segregate the land through which it passes from the public domain and that a miner constructing such a road or facility does not by that act gain any property interest in the specific lands through which it passes. The rationale for this approach would be that although the mining laws contain an implied right of access, they do not grant rights in any particular route of access. While this analysis might have some academic appeal, it would thwart the congressional policy expressed in the mining laws of encouraging development of domestic mineral resources and ignores the need for secure access which caused the court in United States v. 9,947.71 Acres of Land to find that a road constructed pursuant to Section 8 of the 1866 Act created a
[Page 8-4]
compensable property right. The better analysis, therefore, is that access facilities constructed pursuant to the implied grant of the mining laws create a vested property right,19 the nature of which must necessarily be defined in the context of the analysis of or challenge to the right.
Because it arises from a statutory grant, the miner's implied access rights are more substantial than the "implied licenses" which courts have previously found to exist where Congress has not prohibited a particular use of public lands, such as grazing20 or recreation.21 But the rights which the owner of a means of access constructed pursuant to the implied grant has with respect to a subsequent locator, lessee or other user of the lands through which the access passes have yet to be defined.
The scope of the mining laws' implied grant of access rights is also ill-defined. Presumably the implied grant covers more than the mere right of ingress and egress. Because the statutory language from which the right is implied provides that public lands are to be free and open to "exploration" and "occupation," it seems clear that Congress intended to grant more than the right simply to go to and from a claim.22 It is not clear, however, what types of access means or facilities fall within the implied right. Nor is it whether the implied grant would authorize access over lands other than unencumbered public domain and national forest lands. The nature and scope of the miner's implied rights is likely to be defined slowly through the common law process.
III. The Federal Land Policy and Management Act
Amendment of the Mining and Rights-of-Way Laws
The Federal Land Policy and Management Act of 197623 expressly amended the Mining Law of 1872 by providing that:
In managing the public lands the Secretary shall, by regulation or otherwise, take any action necessary to prevent unnecessary or undue degradation of the lands.24
However, Section 302(b) of FLPMA makes it clear that, except for the mandate to the Secretary to prevent "unnecessary or undue degradation" of public lands, and in three other particulars not relevant to miners' access rights, nothing in FLPMA shall amend the Mining Law of 1872 or "impair the rights of any locators or claims under that Act, including, but not limited to, rights of ingress and egress."25
[Page 8-5]
FLPMA also repealed a number of laws relating to rights-of-way over, upon, under and through public lands, including Section 8 of the 1886 Act, and the 1895 Tramroad Act.26 The repealed piecemeal legislation relating to rights-of-way was replaced by a broad grant of authority to the Secretaries of Agriculture and the Interior to issue rights-of-way over lands subject to their jurisdiction for roads, railroads, pipelines, reservoirs, electrical transmission systems and other transportation systems.27 But FLPMA merely empowers the...
To continue reading
Request your trial