CHAPTER 9 PERMITTING ENERGY AND MINERALS PROJECTS ON PUBLIC LANDS
| Jurisdiction | United States |
PERMITTING ENERGY AND MINERALS PROJECTS ON PUBLIC LANDS
Marc Marra
Fennemore Craig
Phoenix, AZ
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DAWN G. MEIDINGER is a director with Fennemore Craig, P.C. in Phoenix, Arizona. She practices in the areas of natural resources, real estate, and environmental law, with a focus on mining, public land utilization (state and federal) and permitting. In the natural resources sector, she has extensive experience permitting mining, renewable energy, and linear projects addressing all aspects of NEPA, NHPA, and ESA compliance. With respect to public lands, she has represented clients seeking a variety of use authorizations (exploration and mine plans of operation, special use permits, rights-of-way, grazing leases, etc.) from federal and state agencies including the Bureau of Land Management, United States Forest Service, and Arizona State Land Department. Prior to joining the firm, Dawn worked as in-house counsel for Phelps Dodge Corporation (today Freeport-McMoRan Inc.) and in the private sector serving as the operational lead on the entitlement and development of large residential and industrial real estate projects in metro-Phoenix. Dawn received her J.D. from the Sandra Day O'Connor College of Law at Arizona State University (ASU) in 1996 and her B.S. in Justice Studies from ASU in 1990 and grew up in Wyoming.
I. Introduction
This is a primer for evaluating the siting of energy and minerals projects on public lands.1 The starting point for any review is determining the land status. The land status dictates agency jurisdiction and the applicable statutory requirements for land management. The vast majority of federal public lands not held in trust are administered either by the Bureau of Land Management ("BLM") or the Forest Service. Accordingly, our primer begins with a brief overview of the history of the establishment of those two agencies. That history provides a framework for interpreting their modern organic acts and understanding the obligations for land use planning and project-level decision making. We also discuss permitting considerations associated with four of the major environmental laws that are applicable to almost every type of energy or mineral project that may occur on federal land.
II. Brief Overview of the History of Public Land Management
A. In the Beginning
Upon the founding of the Nation in 1776, the Maryland legislators declared that the "back Lands claimed by the British Crown" should be considered as a "common stock."2 This declaration represents the very beginning of the concept of the public domain land as it has evolved over the years and into the present day. At the very infancy of the Nation, this declaration raised the issue of what would become of the territories between the Appalachian Mountains and the Mississippi River. And the issue was rather a contentious one.
Seven states maintained claims to the westward territories. Colonial charters from England granted title to lands beyond the Appalachians to six of the original thirteen colonies - Virginia, Massachusetts, Connecticut, North Carolina, South Carolina and Georgia. And New York maintained claims to lands ceded by the Iroquois Indians. The remaining states maintained no claim to these territories.
For the states that had no claims to these territories, they feared that the other states with land claims would dominate the nation, both economically and politically. Acting on such fears, Maryland demanded relinquishment of all territorial land claims to the central government and refused to sign the Articles of Confederation until concessions were made. New York was first to compromise, by ceding its land claims to
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the central government in 1780. The United States accepted the cessation in 1781. Slowly but surely, the various states ceded their land claims - Virginia in 1784, Massachusetts in 1785, Connecticut in 1786, South Carolina in 1787, North Carolina in 1790, and Georgia in 1802.
Thereafter, the public domain grew through various acquisitions, conventions, compromises, cessations and treaties:
• Louisiana Purchase - acquired from France in 1803, doubling the size of the nation.
• Red River Valley of the North - acquired by treaty with Great Britain in 1818.
• Florida - acquired by treaty with Spain in 1819.
• Republic of Texas - annexed by United States in 1845 (not part of public domain).
• Oregon Country - acquired by compromise with Great Britain in 1846.
• California and the Southwest (including Nevada, Utah, Arizona and portions of New Mexico and Colorado) - acquired by treaty of Guadalupe Hidalgo with Mexico in 1848.
• Purchase from Texas (portions of New Mexico, Colorado, Oklahoma and Kansas) - acquired in 1850.
• Gadsden Purchase (portion of southern Arizona and New Mexico) - acquired from Mexico in 1853.
• Alaska - acquired from Russia in 1867.
B. The First Land Ordinance
Upon New York ceding its land claims, the Congress of the Confederation pledged that the unappropriated lands ceded or relinquished to the United States would be disposed of for the benefit of the United States; that is, sold primarily for the generation of revenue. There was much debate at the time regarding how best to dispose of the lands - indiscriminate settlement and subsequent survey, or a more orderly system of settlement after survey. The Land Ordinance of May 20, 1785 established a system of orderly settlement, requiring survey of the public lands prior to disposal.3 The public lands were to be surveyed and numbered by the Geographer of the United States into a series of rectangular townships. One-seventh of the townships, selected at random, were set aside for use to satisfy military land warrants. The remaining were to be auctioned off for no less than $1/acre. Half were to be offered in whole, and the other half were to be offered in smaller one-square mile sections. The United States reserved Section 16 in each township for revenue for public schools, and four other sections for later sale. Also, the United States reserved a one-third interest in any gold, silver, lead or copper that might be contained in the lands disposed.
The surveys began immediately, but were very slow to progress. The first auction was held in 1787, but there was little interest, primarily due to the long distance to
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markets and the availability of cheaper lands within the boundaries in the original thirteen states. Desperate for revenue, the Confederation ultimately abandoned the Land Ordinance and sold some lands to speculators for pennies on the dollar. In 1789, United States Constitution replaced the Articles of Confederation, and the Land Ordinance ceased to operate.
C. The Constitutional Delegation of Power to Dispose of Property
The United States Constitution delegates to Congress the "[p]ower to dispose of and make all needful Rules and Regulations respecting the Territory and other Property belonging to the United States."4 Congress engaged in debate regarding the policy of disposal of public lands, but did not reach a compromise until the passage of the Land Act of 1796.5 Importantly, it retained the system of rectangular surveys, but similar to the experiences under the Land Ordinance, land sales were dismal. Congress reacted by passage of the Harrison Land Act of 1800 as an amendment.6 Here, smaller tracts were offered, purchasers were given four years to pay the auction price, and a significant 8% discount if the auction price was paid at the time of auction. Perhaps most important with this amendment was the establishment of district land offices near where the lands being auctioned were located. These frontier land offices became an important center for activity where people made entry for public lands. The offices were administered by individuals appointed by the President, and were the register and receiver of land applications in the official record books and the survey plats of the office. Ultimately, more than 360 district land offices were established. As land sales activity increased, Congress again stimulated the market by enactment of the Land Act of 1804, which further reduced the size of available tracts, and extended credit payment terms.7
D. General Land Office - The Precursor to Bureau of Land Management
Congress created the General Land Office in 1812 (the "GLO"). The GLO was charged with the responsibility to "superintend, execute, and perform all such acts and things, touching or respecting the public lands of the United States."8 The GLO was placed within the Treasury Department until 1849 when it was transferred to the newly established Department of Interior. In the early years, the GLO continued to dispose of lands, often through boom and bust cycles. In an effort to rectify squatting at the frontier, Congress passed the Distributive Preemption Act of 1841, which allowed citizens and those declaring intent to become citizens a one-time privilege of entering up to 160 acres of surveyed land at the minimum price per acre.9 The claimant was required to reside on and cultivate the land, which could not be lands occupied as towns, places of trade, mining lands, or lands that were reserved for government use. To encourage settlement and disposal of less desirable and passed over scattered tracts, Congress enacted the Graduation Act of 1854, which authorized the purchase of lands at decreasing prices from
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$1 per acre down to 12-1/2 cents per acre depending on how long the lands had been available for disposal and not claimed. The only requirements were that the claimant must live on or own an adjacent farm, and individually they could purchase no more than 320 acres.10
As time passed, Congress began to authorize various laws that continued to encourage settlement and westward expansion. The Homestead Act of 1862 authorized entry and patenting of 160 acres after 5...
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