Chapter 2. Protected Areas

Chapter 2.
Protected Areas
L. COURTLAND LEE GARYBENNETHUM

INTRODUCTION For any identified mineral resource to qualify as a minable reserve, it must contain legally and economically extractable mineral at the time of determination. As competition for land has increased, the legal complexities have more than kept pace, frequently becoming the most important determinant in mineral exploration and development projects. Rarely will developers of a project avoid having to obtain numerous federal, state, and/or local permits while acquiring the necessary legal permission to begin mining. Each site must be selected carefully, not only for economic feasibility, but also for legal feasibility. Although it is impossible to present site-specific solutions for all potential underground developments, certain generalizations may be applied to specific land categories, particularly federally owned land. Such federally owned land includes more than 33% of the land area of the United States and many of the areas potentially attractive for future development. State and local restrictions affect a large portion of the nonfederal land, and those restrictions are equally important even though their diversity and current status require more regional study than can be provided herein (the list of references include sources of additional information). Each potential mining site requires a title search of the land status to determine the land ownership and the conditions affecting development. In addition, appropriate data concerning the mineralogic and economic potentials of an area must be collected. As listed in Table 1, many sources of public information are available to aid potential developers. Fig. 1 illustrates a typical federal master title plat. HISTORICAL PERSPECTIVE The settlement of the United States reflects a fascinating history of public-land laws and subsequent mineral-disposal laws. Most of the statutes of the eighteenth and nineteenth centuries sought to dispose of land for the purpose of generating revenue to the federal government. The underlying need for general revenue contributed directly to numerous and often conflicting land policies. More recently, diverse federal programs such as environmental legislation have transcended the need for revenue in forming the framework that determines who has power over mineral developments and where those developments can take place. In 1812, the General Land Office was established under the Treasury Dept. At that time, English common law prevailed, entitling the owner of the surface to whatever was contained within the surface boundaries from the surface to the center of the earth. Unless a distinct title separated the mineral estate, it was included in the surface-land ownership. However, gold and silver were the property of the crown and were controlled by sovereign prerogative. Early state legislation on the subject of mines and minerals may be classified a.; legislation providing for
the sale of state lands with a reservation of the minerals and legislation recognizing or asserting the sovereign prerogative for precious metals. In 1781, a Pennsylvania statute reserved 20% of all gold and silver ore for the use of the commonwealth. Thomas Jefferson suggested that a portion of all gold and silver be retained by the federal government. These early rules affecting land in the eastern states, now privately held, have been repealed, declared obsolete, or largely ignored. Federal legislation prior to 1848 and affecting mining may be classified as legislation reserving the minerals to the United States and legislation authorizing the disposition of reserved minerals by sale, lease, or grant. With many modifications, these basic policies remain in effect at the present time. A 1796 act provided for the sale of the Northwest Territory and for the establishment of the present system of rectangular survey for public lands. The Lake Superior copper region was the scene of "wild and baseless excitement in 1837" when the attorney general concluded that the president had the power to lease lands in Wisconsin; this opinion soon was overturned by another attorney general. By 1846, Congress had passed legislation authorizing the president to sell reserved lead mines "as soon as practicable" since the system of granting Leases had proved to be unprofitable to both the government and the lessees, many of whom refused to pay the rent. The general practice of early federal Legislation was to make a distinction between mineral lands and other lands, deal with them separately, and generally withhold mineral lands from disposal except through special legislation dealing with particular land. In 1848, following the treaty of Guadalupe Hidalgo, a vast land area was ceded to the United States by Mexico. This area included the present states of California, Nevada, and Utah, as well as portions of Arizona. Colorado, New Mexico, and Wyoming. This abolished the Mexican laws and customs relating to mining and preceded the adoption of the miners' own rules and customs. The adoption of those rules and customs foIlowed a hard-fought battle between western congressmen and the eastern establishment. The western congressmen advocated adopting local customs through a location patent system, while the eastern establishment, particularly in Ohio and Indiana, favored an allleasing system to pay off Civil War debts. The first mining law was passed in 1869 as an amendment to an act granting right-of-way to ditch land owners, and it was followed by the 1872 Mining Law. Precedent was established for the first categories of protected lands in the opening words of this act, which included the phrase "all unreserved" lands. Reserved lands subsequently defined included military and Indian reservations and were excluded from location since they were determined to be rcserved lands. However, the overriding purpose of the mining laws was to settle the western lands and generate revenues for the federal
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UNDERGROUND MINING METHODS HANDBOOK

Table 1. lnformation Sources
Owner
General Tltle
Specific Title B L M BLM B L M B L M B L M land plats. land plats and state's Dept. of Lands. land plats and county court records. land plats and county court records. land plats and county court records.
Surface and Mlneral Ownemhlp Federal B L M mineral ownership maps. State B L M mineral ownership maps. County B L M mineral ownership maps. Indian B L M mineral ownership maps. Private B L M mineral ownership maps. Owner
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Tltle B L M and the federal surface-administeringagency. Natural Resources Dept.. Lands Dept., state geological survey, US Bureau of Mines. County administrator or supervisor, zoning commissioner. Tribal council, tribal office, or Federal Bureau of lndian Affairs. Individual owner or state or county administrators. Professional papers, bulletins, and circulars. Water-power and leasable-mineral classification maps. Wilderness, Alaska d(2), Game-Range Assessments (with Bureau maps). Water-supply papers. Open file reports. Leasable mineral resources development potential maps (coal). Mineral investigations maps (MF and M R series). Miscellaneous geologic investigations maps (I series). lnformation circulars, investigation reports, river-basin studies. Land-use plans, unit-resource analyses (present status and potential for development), B L M district office. Energy-mineral rehabilitation inventory and analysis program (EMRIA) reports. State geological survey publications and maps. FS planning unit environmental impact statements (EIS). NURE for uranium exploration. Siting studies for nuclear plants and waste disposal.
Condltlons for Mlneral Development' Federal State County lndian Private MlneraCResource Information USGS publications
B M publications B L M publications State publications FS publications DOE publications
'In all cases, consult federal and state environmental regulators.
government as a result of mineral development. At that time, mineral patents cost $5.00 per acre for lode claims and $2.50 per acre for placer claims (1.0 acre = 4046.9 m2 or 0.004 km2). Congress adopted the tenet that a workable mine provided the highest economic use of the unreserved land. After the beginning of the twentieth century, a growing conservation movement brought about numerous withdrawals of lands from entry (both before and after the Hachett Act, 43 USC 141, June 25, 1910) and also severed the surface land from the subsurface. The fact that the existing mining law allowing 20.6-acre rectangular claims would not conform to easily located bedded mineral resources led to the passage of the Mineral Leasing Act of 1920; this act applied to coal, oil, gas, oil shale, bitumen, phosphate, sodium, and potash. The Mineral Leasing Act of 1920 made provisions for protection of certain lands. These included: national parks and monuments; Indian reservations; incorporated cities, towns, and villages; naval petroleum and oil shale reserves; and lands acquired under the Appalachian Forest ~ e s e r v e Act, 36 scat 961, March 1, 1911. In 1941, the attorney general advised the secretary of the Interior that the Mineral Leasing Act of 1920 did not authorize leases affecting lands acquired by the War Dept. and that it applied only to lands in the public domain. The following year, Congress enacted the Mineral Leasing Act for Acquired Lands (1947). The lands protected under this act included lands acquired
for the development of their mineral deposits; lands acquired by foreclosure or other means for resale; lands acquired as surplus under the Surplus Property Act of 1944; lands in incorporated cities, towns, and villages; lands in national parks and monuments; lands set apart for military or naval purposes, including naval petroleum and oil shale reserves; and lands classified as tide lands, including submerged coastal lands. Beginning with the Timber and Stone Act of 1878, the secretary of the Interior was authorized to dispose of sand, gravel, and stone in the public domain; the quantity and quality of these materials were not subject to location. The Materials Disposal Act of 1947 authorized the secretary of the Interior to dispose of sand, stone, gravel, common clay, timber, and other vegetative products on public lands of the United States if the disposal of such materials was not otherwise expressly authorized by law, including the mining laws of the United States; was not expressly prohibited by laws of the United States; and would not be detrimental to the public interest. The act did not apply to lands in national forests, in national parks, in national monuments, or to any Indian lands. The Materials Disposal Act of 1947 was amended by the Multiple Surface Use Act of 1955 to prohibit the future location and removal of common varieties under the mining laws and limit their disposal strictly to the Materials Disposal Act, give the secretary of Agriculture [Forest Service (FS)] the right to sell common variety lands under his jurisdiction, and repeal the Timber and Stone Act of 1878. In 1960, authority was transferred
ENVIRONMENTAL CONSIDERATIONS
to the secretary of Agriculture for disposal of common varieties in acquired lands as well as several national forests. In 1976, federal mineral-disposal legislation took a new twist with the enactment of the Federal Coal Leasing Amendments Act and the Federal Land Policy and Management Act (FLPMA) . These acts required comprehensive land-use planning as a matter of law, qualifying the issuance of leases to be compatible with the land-use plan. Furthermore, sec. 302 of FLPMA states, "the Secretary shall, by regulation or otherwise, take any action necessary to prevent undue degradation of the lands." Although this section also states that this does not amend the 1872 Mining Law, it does imply that future exploration projects must comply with FS regulation 36 CFR 252 and Bureau of Land Management (BLM) regulation 43 CFR 3809 (proposed Dec. 6, 1976). Special regulations apply to the California Desert Conservation Area and to the King Range in California. Furthermore, Sec. 603 of this bill extends the 1964 Wilderness Act to apply to BLM lands in addition to FS lands, Fish and Wildlife Service (FWS) lands, and National Park Service (NPS) lands. Sect. 16 of the Federal Coal Leasing Amendments Act states:
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. . . nothing in this Act or the Mineral Lands Leasing Act and the Mineral Leasing Act for acquired lands which are amended by this Act, shall be construed as authorizing wal mining in any area of the National Park System, the National Wildlife Refuge System, the National Wilderness Preservation System, the National System of Trails, and the Wild & Scenic Rivers System, including study rivers designated under sect. 5(a) of the Wild & Scenic Rivers Act.
LEGAL AUTHORITIES FOR LIMITING THE AVAILABILITY OF FEDERAL LAND FOR MINERAL DEVELOPMENT To understand the legal restriction on the availability of mineral lands, the various types of limitations and their development must be understood and distinguished. Background and Basic Concepts Although most public land laws were designed to dispose of agricultural land, special statutes were passed to handle various special types of land such as mineral lands, forest lands, desert lands, and lands adjacent to railroads. The prices of these lands and the requirements for qualifying for a patent varied according to the type of land, the rationale being that Congress tried to obtain more money for lands of obvious value, while encouraging settlers to bring as much land as possible into agricultural production. The principal formal legal mechanisms now used to restrict the availability of mineral lands were tailored to those nineteenthcentury statutes. Thus, lands were "segregated," with limitations placed on the applicability of one or more of the land-disposition statutes for a particular parcel of land. The three basic methods that have been used to segregate land are classification, withdrawal, and reservation. All three methods of limiting the availability of mineral lands have been exercised by both Congress and the executive branch. Article 4, Sec. 3, C1. 2 of the Constitution vests plenary power over the public lands
in Congress. Congress has exercised its power directly and indirectly by passing statutes that control the use of lands and by delegating management authority to administrative agencies. These legal mechanisms were not developed explicitly to control mineral-land development. The mining and mineral leasing laws are just one type of federal disposition statute, and they vary considerably among themselves. A review of these laws is helpful in understanding why their operation has been restricted through withdrawals, classifications, and reservations. The principal statutes authorizing the disposition of federal mineral resources are the Mining Law of 1872, the Mineral Leasing Act of 1920, and the Mineral Leasing Act for Acquired Lands of 1947. These and other laws and acts are described in the references. General Withdrawal Act of 1910 The basic formal methods of limiting the availability of mineral lands were developed during the nineteenth century through piecemeal executive and congressional actions. In 1910, the first general statute governing withdrawals was enacted. During the early twentieth century, flagrant exploitation of various public land resources caused Presidents Roosevelt and Taft to withdraw extensive areas for specific purposes. These withdrawals were made under executive initiative, without citing any statutory authority, and they were so extensive that a major controversy developed over the management of public lands. President Taft was prompted to ask Congress for express statutory authority to make such withdrawals, and this led to the passage of the General Withdrawal Act of 1910, commonly known as the Pickett Act, 43 USC 141-143. This statute authorizes the president to temporarily withdraw any of the public lands from settlement, location, sale, or entry, and to reserve them for water power sites, irrigation, classification, or other public purposes specified in the withdrawal orders. However, the act provided that all lands withdrawn under the act would remain open to exploration, discovery, occupation, and purchase under the mining laws, insofar as they applied to metalliferous minerals. Following the passage of the Pickett Act, the validity of Taft's prior withdrawals for petroleum reserves was challenged. The case eventually was decided in United States vs Midwest Oil Co., 236 US 459, 1915, in which the Supreme Court upheld the president's withdrawal of the land since Congress had acquiesced in such executive withdrawals. Earlier presidential and secretarial withdrawals of extensive land areas without citation of authority supported the concept of congressional acquiescence. The effect of the Pickett Act on this implied executive authority for withdrawal was not addressed in the case. Following the Pickett Act and the Supreme Court's decision in the Midwest Oil case, executive authority to make temporary withdrawals for specified public purposes was clear. However, under the Pickett Act, withdrawals from metalliferous locations under the mining law and permanent withdrawals were unauthorized. The underlying issue in the Midwest Oil case remained unanswered, specifically whether the executive branch, relying upon implied congressional acquiescence, could withdraw lands from the mining law or make permanent withdrawals.
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act expired in 1971, but between 1964 and 1971, BLM classified approximately 12 140 km2 (3,000,000 acres) for disposition and 586 800 km2 (145,000,000 acres) for retention. The Dept. of the Interior has taken the view that retention of classifications under CMU continues indefinitely, even though the act itself has expired. This means that the segregative effect of the classification continues for areas in which the classification segregated the areas from mining or mineral leasing. Thus, classification undertaken pursuant to CMU may restrict the availability of mineral lands; the classifications may be found in land agency offices.
Administrative Restrictions Land administrators can restrict the availability of mineral lands by exercising their managerial discretion either informally or through official regulations. A number of these administrative restrictions, sometimes called "de facto withdrawals," are described in the following paragraphs. Segregation: As applied in public-land law, segregation means any limitation on the applicability of various public-land disposition statutes to a particular parcel of land. Any land that is withdrawn, classified, or reserved is considered segregated. The term is used in a special sense to refer to temporary administrative limitations on the applicability of the public-land laws while withdrawal, classification, or reservation applications are being processed formally. In such instances, segregation has the same effect as formal withdrawal, classification, or reservation actions. The term indicates that the area has been set aside temporarily during the administrative process. The basic idea is that, to promote orderly management, conflicting applications should be prevented while the first action is being processed. However, some actions of this kind have continued for many years without action being taken on the original application. These are recorded on the federal master-title plat sheets. Land-Use Planning Restrictions: Through land-use planning, land managing agencies develop and record decisions indicating the development and use or the combinations of uses for specific areas of public lands. The resulting plans establish constraints for future actions and programs in the planning areas. These plans may affect the availability of mineral lands, particularly at the local level in dealings between a mineral developer and the local land manager. If mineral development is inconsistent with the planned use of an area, the local manager may deny an application or may discourage such an application, even if such development is not prohibited formally. This is especially true of mineral leasing, which is highly discretionary. BLM and FS are the largest federal land-management agencies, and both have elaborate multiple-use planning systems that can restrict mineral development if inconsistent with their plans. BLM has the general authority for mineral leasing on federal lands. Except for acquired land and coal on public land, FS authority to disapprove a mineral lease is based upon a policy agreement between the Dept. of the Interior and the Dept. of Agriculture. Both BLM and FS have their land-use plans available at district offices. Revocation and Restoration of Withdrawn Lands: Under Sec. 2370 of the BLM manual, a private citizen
By 1940, the need arose to limit the operation of the mining law on various parts of the public domain. Such withdrawals could not be made under the explicit authorization of the Pickett Act and, in many instances, were not authorized by any other statute. The secretary of the Interior asked the attorney general whether the president had authority to withdraw land from operation of the mining law, and the attorney general responded with an opinion in 1941, 40 Op AG 71. The opinion stated that the Pickett Act did not affect the executive's implied authority to make permanent withdrawals from all forms of mineral development if the withdrawal was for public use such as an administrative site. The opinion left open the question of whether withdrawals from the mining law for a public purpose such as preserving other resource values were permissible. While this question never has been resolved, the so-called "implied executive withdrawal" authority has been used extensively. The legal question has been resolved by passage of the Federal Land Policy and Management Act (the BLM Organic Act), PL 94-579,90 Stat 2743. Whether implied or specifically authorized by statute, the president's authority to withdraw land has been delegated to the Secretary of the Interior (Executive Order No. 10355, May 26, 1952, 17 Fed. Reg. 4831). The secretary exercises the authority over withdrawals for all of the federal government, but the executive order specifically states that the secretary cannot revoke or modify an order affecting lands under the administrative jurisdiction of any other executive department without the prior approval of the head of the agency affected.
Classification and Multiple Use Act of 1964 In 1964, Congress undertook a major review of the public land laws by establishing the Public Land Law Review Commission (PLLRC) . In the Classification and Multiple Use Act (CMU), 79 Stat 986, 1964, 43 USC $ 5 1411-1418, 1970, Congress simultaneously directed BLM to classify the BLM-administered public lands for either retention or disposition. Although broad authority did exist in Sec. 7 of the Taylor Grazing Act, 43 USC 3 15f, CMU was the first comprehensive classification authority. Under CMU, lands were to be disposed of if they were required for the orderly growth and development of a community or if they werc valuable primarily for residential, commercial, agricultural, industrial, or public uses or development. Otherwise, the lands were to be retained under federal ownership and managed for domestic livestock grazing, fish and wildlife development, mineral production, occupancy, outdoor recreation, timber production, watershed protection, wilderness preservation, or the preservation of public values that would be lost if the land passed from federal ownership. The secretary was to review all public lands as soon as possible to classify them for retention or disposition. Of special significance, classification under CMU could segregate land from mining and mineral leasing; this was not possible under earlier classification authorities. CMU was viewed as an interim measure for the orderly management of the public lands, pending completion of the PLLRC study and incorporation of any modifications that might result from that study. The
may initiate revocation or removal of a federal land withdrawal by filing a letter with BLM. This initiative should be in the form of a letter which, when filed by BLM, becomes an indication of interest in the lands withdrawn. It is required that BLM incorporate this information into its planning processes; although it does not generate a withdrawal review, it may change the priorities under which BLM automatically would review withdrawals (Sec. 204 of BLM's Organic Act and 43 CFR 2370). More formal procedures are required in the Angeles and Las Padres National Forests (BLM instruction memorandum 78-233). Furthermore, if it can be shown that a federal land agency excludes a tract of land of 405 kmz (100,000 acres) or larger from mineral exploration for more than two years without a report being filed to Congress, these exclusions would violate Sec. 202 of BLM's Organic Act. Terms and Conditions under the Mining Law and the Mineral Leasing Act: Both FS and BLM have the authority to regulate mining and mineral-leasing activities on the lands they administer. In 1974, FS adopted comprehensive regulations on mining within the national forests, 30 CFR Pt. 252, 1975. Its objective was to control activities under the Mining Law of 1872 so as to minimize adverse environmental impacts on the surface resources within national forests. The responsibility for managing mineral resources remains with the Dept. of the Interior. The authority for these regulations is contained in the FS Organic Act of 1897, 30 Stat 35 and 36, 16 USC 00478,551. The regulations recognize the statutory rights of miners and prospectors to go upon and use open lands in the public domain within national forests for the purposes of mineral exploration, development, and production. They seek to regulate the surface use in a reasonable and consistent manner so as to not inhibit or interfere with legitimate and well-planned mineral operations (FS Manual 02850.3). Depending upon the severity of the anticipated surface disturbance, the mining operator must file a notice of intent to operate, a plan of operations, or no notice at all with FS. If an operator fails to comply with the approved operating plan, the operator's bond is forfeited to the extent necessary to reclaim the area. Under the regulations, mining activities must be conducted to minimize the environmental impacts. All of the requirements designed to reduce such impacts are tempered by the caveat that they cannot be unreasonable, which is read to include a consideration of the economics of the operation. On Dec. 6, 1976, the Dept. of the Interior published draft surface-management regulations designed to control the environmental impacts of mineral exploration and development under the Mining Law of 1872 on BLM-administered lands. These proposed regulations are very similar to FS regulations, requiring a permit prior to any surface-disturbing work and an approved plan prior to development. The issuance of competitive leases and prospecting permits under the Mineral Leasing Acts is discretionary. Various sections of the acts establish some of the terms and conditions that must be included in the leases, but the acts do not make specific provisions for all of the terms and conditions. Sec. 32 of the Mineral Leasing Act, 30 USC 0189, authorizes the secretary to do all things necessary to accomplish its purpose. Consequently, the secretary has considerable discretion in establishing lease terms, but his discretion in setting the terms is limited by the provisions of Sec. 30 of the Mineral Leasing Act, 30 USO 0187. Sec. 30 provides that each lease shall contain provisions to accomplish certain purposes, including the exercise of reasonable diligence, skill, and care in the operation of the property; provisions for the safety and welfare of the miners; and the prevention of undue waste. Sec. 30 also states, "each lease shall contain . . . such other provisions as [the Secretary of the Interior] may deem necessary for the protection of the interests of the United States . . . and for safeguarding of the public welfare." The "interests of the United States" and the "public welfare" both are terms that cannot be defined explicitly. Moreover, they inevitably are going to be interpreted differently at different times. The Secretary of the Interior is limited by a requirement of reasonableness in the imposition of lease terms. Although the secretary must be not arbitrary or capricious, the terms he proposes are acceptable as long as there is a reasonable basis for them and they are not in conflict with other requirements of the statutes. This would be true even if the lease provisions rendered the operations under the lease uneconomic. In determining the lease terms, the Dept. of the Interior must consider the public welfare under Sec. 30 of the Mineral Leasing Act and the requirements of other statutes, but no particular lease term or form is required. The secretary's duty is to protect the interests of the United States and safeguard the public welfare, and this requirement imposes a balancing effect on his actions. The secretary must recognize that, under some circumstances, even mineral development with environmental impacts may be the action most consistent with safeguarding the public welfare and most in the interest of the United States. The availability of mineral lands under the Mineral Leasing Acts may be controlled through terms and conditions in the leases issued for both FS- and BLM-administered lands. Federal Land Policy and Management Act The Federal Land Policy and Management Act (FLPMA) of 1976, better known as the BLM Organic Act, was signed by President Ford on Oct. 21, 1976, and it was the first attempt ever made to completely reform the public-land laws of the United States. In undertaking this task, Congress was well aware of the problem of mineral-land availability, and the final product reflects this concern both in the overall policy of retaining lands under federal ownership for multipleuse management and in specific provisions concerning land-use planning and withdrawals. FLPMA makes substantial changes in the use of the three traditional legal mechanisms for restricting the availability of mineral lands (withdrawal, classification, and reservation) and in the use of administrative restrictions. Withdrawals: The final version of FLPMA incorporated the withdrawal provisions originally adopted by the House of Representatives. Prior to adoption, the House Subcommittee on Public Lands conducted detailed discussions on the availability of mineral lands. FLPMA, 0103(j) defines the term "withdrawal" to mean:
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3 METHODS HANDBOOK UNDERGROUND MININ(

years, and renewal must be in accordance with standard withdrawal procedures. Except to the extent that emergency withdrawals are exempted, some procedures are common to all withdrawals. Withdrawals may be initiated on the secretary's own motion or by application (presumably by another federal agency). In either case, a Federal Register notice must be published within 30 days and must state the extent of segregation. Segregation is effective upon publication and continues for a maximum of two years or until the application is either accepted or rejected. New withdrawals may be made only following an opportunity for a public hearing. All withdrawals with specific termination dates must be reviewed prior to termination to determine whether renewal is necessary, and all renewals must meet the requirements of the act. Finally, the secretary may make, modify, or revoke withdrawals on lands administered by non-Interior agencies only with the consent of the affected agencies. The report to be sent to Congress on withdrawals of 20 km2 (5000 acres) or more and on emergency withdrawals is quite extensive, as detailed in Sec. 204(c) ( 2 ) , 90 Stat 2743. In addition to establishing new withdrawal procedures, FLPMA addresses the problem of existing and pending withdrawals. First, the act requires all pending withdrawals to be processed within 15 years; if not so processed, the segregative effect of the application terminates. Second, existing withdrawals in the 11 contiguous western states must be reviewed within 15 years. Certain withdrawals are excluded from the review: (1) withdrawals of BLM and national-forest lands that did not close the land to mining or mineral leasing; (2) withdrawals of BLM and national-forest lands in wilderness, primitive, or national recreation areas whether or not the withdrawals closed the land to mining and mineral leasing; and (3) withdrawals of lands within certain systems as of Oct. 21, 1976, including Indian reservations, national forests, national parks, wildlife refuges, wild and scenic rivers, and national trails. The provision for review of withdrawals requires a determination by the secretary as to whether and for how long the continuation of existing withdrawals is consistent with the statutory objectives of the programs for which the lands were withdrawn. These recommendations are to be submitted to the president with a statement of concurrence or nonconcurrence of the agency heads. The president is required to transmit the report to Congress with recommendations for action by the secretary or for legislation. The secretary may act to terminate withdrawals, other than those made by an act of Congress, in accordance with the recommendations unless Congress adopts a current resolution "indicating otherwise" within 90 days. The authority to make and act on the recommendations does not increase the secretary's withdrawal authority with respect to withdrawals that can be made or revoked by Congress. Classification: FLPMA does not discuss classification specifically. Old statutes that require land classification concepts and authorities continue to apply in these limited cases. Basically, land-use planning and formal withdrawals replace the current use of classifications insofar as mineral-land availability is concerned. Administrative Restrictions: Like land-use plans and lease terms and conditions, administrative restrictions
. . . withholding an area of Federal land from settlement, sale, location, or entry, under some or all of the general land laws, for the purpose of limiting activities under those laws in order to maintain other public values in the area or reserving the area for a particular public purpose or program . . .
This definition encompasses what were traditionally known as withdrawals and what were known as reservations. The term does not include land-use management decisions that may exclude one or more principal or major land uses, including mineral development. FLPMA does not list leasing as one of the specific activities included within the definition of withdrawal, and there is some question as to whether the definition could be extended to include the removal of lands from operation of the mineral-leasing laws. The principal section of FLPMA affecting formal withdrawals and reservations is $204. With a few minor exceptions the act repeals all existing withdrawal authorities. Congress reserved to itself the authority to create, modify, or terminate withdrawals or reservations for national parks, national forests, wilderness areas, Indian reservations, certain defense withdrawals, wild and scenic rivers, nationzl trails, national recreation areas, and national seashores. Congress also reserved the authority to modify or revoke withdrawals for national monuments and the national wildlife refuge system. Congress recognized that withdrawal authority is necessary for proper management of the public lands and other government programs. The FLPMA grants the secretary broad withdrawal authority, including the explicit authority to withdraw land from the operation of the 1872 Mining Law. However, this authority is subject to stringent congressional control, and a number of statutory requirements must be met. Essentially, the act creates two types of withdrawals known as "standard" and "emergency" withdrawals. r n " 5 0 0 0 acres) or Stnndard Withdrawals of 20 k More-Withdrawals of 20 km2 (5000 acres) or more may be made for a maximum period of 20 years. Congress must be notified of such a withdrawal by the effective date of the withdrawal, and an extensive report also must be submitted within three months. Congress may terminate the withdrawal within 19 days by concurrent resolution. Standard Withdrawals of Less than 20 k r n " 5 0 0 0 (zcres)--Withdrawals for a "resource use" (resource use is not defined) may be for whatever period of time the secretary deems desirable. Withdrawals for a "nonresource use" are limited to 20 years, and such uses include but are not limited to administrative sites, location of facilities, and other "proprietary purposes." In aid of legislation, withdrawals to preserve a tract for a specific use under consideration by Congress cannot exceed five years. Emergency Withdrawals-Emergency withdrawals may be made if an emergency situation exists and extraordinary measures must be taken to preserve values that otherwise would be lost. Notice must be filed immediately with Congress and must be followed within three months by the same type of report required for standard withdrawals of 20 km2 (5000 acres) or more. An emergency withdrawal is effective only for three
have had a major effect on the availability of mineral lands. For BLM lands, FLPMA mandates land-use planning and the imposition of terms and conditions to protect the environment. Similar requirements are imposed by the Coal Leasing Amendments Act of 1976 and by the Forest Service organic legislation known as the National Forest Management Act of 1976. General land-use planning is mandated by $202 of FLPMA. The land-use plan provides the basis for all other land-management decisions. The plans may be implemented by management decisions. If the decisions involve excluding any principal use for two or more years for a tract exceeding 405 km2 (100,000 acres), Congress must be notified and may terminate the decision within 90 days by passage of a concurrent resolution. Principal or major uses are defined in 105(1) as domestic livestock grazing, fish and wildlife development and utilization, mineral exploration and production, rights-of-way, outdoor recreation, and timber production. When such a decision is made, there is no requirement to provide a report justifying the decision as there would be for certain withdrawals. While the act requires that the formal withdrawal mechanism be used to remove areas from the operation of the 1872 Mining Law [9202(e) (3)], other restrictions on the availability of mineral lands may be effected through land-use planning management decisions to the extent consistent with either the Mining Law or the Mineral Leasing Act of 1920. By generally reforming public-land law, FLPMA affects mineral-land availability. BLM lands now must be managed on a multiple-use basis and in a way that protects the environment. While withdrawals are controlled strictly, they clearly are authorized. Any decision to lease land now must be based upon land-use planning and, if an area is of "critical environmental concern," its environmental value must be ~rotected.
Other Statutes Affecting Mineral-Land Availability The authorities already described are designed to generally control the use and development of public lands. Three other statutes having effects on the availability of mineral lands are the Wilderness Act, the Endangered Species Act, and the Mining in the Parks Act, all of which were designed to preserve certain natural resources and all of which restrict mineral development to various degrees. Wilderness Act: Subject to valid existing rights, the Wilderness Act provides that mining and mineral leasing will not be allowed in wilderness areas after Jan. 1, 1984. Furthermore, the exercise of existing rights may be regulated to preserve the wilderness characteristics of the area. Additional problems are encountered in roadless areas that are being studied for inclusion in the wilderness system. In Parker vs. United States, 448 F 2nd 1977, 10th Cir 1971, it was held that FS could not sell timber in an area contiguous to an existing primitive area because to do so would destroy the wilderness value of the area that Congress explicitly stated should be considered for addition to the wilderness system. Following this case, FS settled another case in Sierra Club vs. Butz, F. Supp., N.D. Cal., 1972. The government agreed to prepare environmental impact statements
189
prior to allowing any activity in roadless study areas. This decision reflects FS policy of maintaining wilderness qualities in such areas pending final management decisions on their use. Sec. 603 of FLPMA requires BLM to review the lands it administers and to make recommendations to Congress for the inclusion of suitable areas into the wilderness system. During the review period, these areas must be managed so as to not impair their wilderness suitability. Existing mining and mineral-leasing uses may continue to the extent that they were being conducted on Oct. 21, 1977, but new mining uses may be restricted. The land ultimately included in a wilderness area is subject to the same conditions already described for existing wilderness areas, including the 1984 termination date. Endangered Species Act: Implementation of the Endangered Species Act (ESA) of 1973 may impose further restrictions on mineral exploration and development on federal lands. ESA authorizes the secretaries of the Interior and Commerce to identify endangered or threatened species of all animals and plants. ESA then directs all federal departments and agencies to take whatever actions are necessary to assure that their programs do not jeopardize the continued existence of endangered or threatened species or do not result in the destruction or modification of the critical habitat of any such species. As of 1978, the Dept. of the Interior has proposed that 1700 species of plants native to the United States be listed officially as endangered species. About 600 species of animals have been listed officially as endangered, and additional species may be proposed in the future. The impacts of such lists vary widely; for example, more than half of the listed plants are in Hawaii, but other listed plants have extensive ranges in the continental United States. Because it usually takes place in rural areas and utilizes undeveloped- lands, mineral exploration and development may be affected greatly by ESA. The potential impacts of ESA on mining may reduce the total land area open to mineral exploration and development and can increase the uncertainties and costs of mineral leasing, exploration, and development. If a species is listed as threatened or endangered, ESA calls for the protection of the species. The actual impact on mineral exploration and development depends upon the types of protective methods employed and the mining restrictions associated with a particular protective measure. For example, if a portion of an endangered species' habitat is determined to be "critical," federal agencies are instructed under ESA to assure that their actions do not destroy or modify that habitat. T o the extent that federally authorized mining activities may destroy or modify critical habitats, such activities presumably will be restricted. Specific requirements for protecting an endangered species generally are not known when the species is listed. It is difficult to know exactly what actions will jeopardize the continued existence of the species. Without criteria that specify habitat needs, a mineral leasing, managing agency, or a mining company may have to devote time and resources to obtaining information on the species' incidence, the impact of mineral-related activities, and possible mitigating measures. Additional
190

of the park system shall be recorded with the Secretary of the Interior. 7) Within two years, the Advisory Council on Historic Preservation shall report to Congress with recommendations for legislation on the actual or potential effects of surface-mining activities on the natural and historic landmarks. 8) The holder of any patented or unpatented mining claim who believes he has suffered loss because of the act or its orders or regulations may bring action in a US District Court to recover 'ust compensation. To implement the law, N S issued regulations to control mining in all units of the park system. Alaska Lands In Alaska, mineral lands are restricted as a result of the effort to transfer federal lands to the State of Alaska and to the Alaskan natives, as required by the Alaska Statehood Act, 72 Stat 339, and the Alaskan Native Claims Settlement Act (ANCSA), 85 Stat 668. By 1984, 418 850 km2 (103,500,000 acres) must be transferred to the state, and 178 100 km2 (44,000,000 acres) must be transferred to the natives. The land remaining under federal ownership is to be divided as well, of which 323 700 km2 (80,000,000 acres) are proposed for inclusion in the "Four Systems" of national parks, national forests, wildlife refuges, and wild and scenic rivers. Until these land dispositions and allocations are determined, almost all federal land in Alaska is withdrawn from mining and mineral-leasing activities. As the lands are transferred to state or native ownership or their federal status is determined, the land may be made available for mineral development. Table 2 lists the land status in Alaska prior to the 1971 passage of ANCSA. With the exception of NPS, Pet 4, the military areas, most of the remaining lands were available for one or another type of mineral location, entry, or lease. With the passage of ANCSA and resulting administrative actions, all land in Alaska presently is withdrawn; in addition to the pre-ANCSA withdrawals of Table 2, additional withdrawals havc been made as listed in Table 3. The figures in these tables cannot necessarily be translated to indicate the impact of the withdrawals on mineral-land availability in Alaska today and in the future (Metz, Pearson, and Lynch, 1978). Some speculations concerning general Alaskan landcategory studies include: 1) Some national forest areas may be opened to leasing. 2) In some situations, national wildlife refuges may be opened to oil and gas leasing (43 CFR 3101.3-36).
expense and delay may result from litigation initiated by citizens under the citizen-suit clause of ESA. Once a species has been listed as endangered or threatened, the principal discretionary authority available to the secretary is his authority to select the method of protection. Methods of protection range from transplanting species to prohibiting a particular adverse activity such as mining. If the specific habitat is critical to the survival of the species and if the operation of a mine will destroy or modify that habitat, the secretary appears to have little or no discretionary authority to weigh the benefits of protecting the species against the benefits of mineral production. As of 1978, it has not been settled whether or not ESA is applicable to federally authorized mining activities initiated prior to listing particular species. ESA may restrict mineral development on federal lands and may increase the costs of mineral production due to the required research and mitigation measures, and the needed studies and litigation may delay or impede development. Mining in the National Park System: Public Law 94-429, approved on Sept. 28, 1976, provides for the regulation of mining activities within certain areas of national parks, and it repeals the application of mining laws to those areas. Under provisions of the 1872 Mining Law and the individual organic acts for some parks, exploration, staking claims, and mining had been permitted in six areas, namely Coronado National Monument. Crater Lake National Park, Death Valley National Monument, Glacier Bay National Monument, Mount McKinley National Park, and Organ Pipe Cactus National Monument. Mining is taking place in Death Valley National Monument and Mount McKinley National Park. Although claims exist in other areas, actual mining is not underway in any of them. The provisions of the law specify: 1) Mining activities in areas of the national park system shall be subject to regulation by the Secretary of the Interior. 2) Subject to existing rights, specified areas are closed to entry and location under the 1872 Mining Law. 3) For a four-year period during which the requirement on annual expenditures shall not apply, holders of valid mineral rights in Death Valley National Monument, Mount McKinley National Park, and Organ Pipe Cactus National Monument shall not disturb the surface of lands whose surface was not disturbed significantly before Feb. 29, 1976. 4) Within two years in Death Valley, Glacier Bay, and Organ Pipe Cactus National monuments, and within four years in Coronado National Monument and Crater Lake National Park, the Secretary of the Interior shall determine the validity of unpatented mining claims and shall recommend to Congress whether any valid or patented claims should be acquired. 5) Within two years, the Secretary of the Interior shall study and recommend modifications to the existing boundaries of Death Valley and Glacier Bay National Monuments for the purpose of excluding significant mineral deposits to decrease possible acquisition costs. 6) Within one year, all mining claims within units
Table 2. Agency
Federal Land Status in Alaska Prior to 1971 ANCSA Land Area, km2 (acres)
Forest Service (FS) Wildlife Refuges (NWR) Park Service (NPS) Petroleum Reserve 4 (Pet 4) Military reservations Other wildlife State selections
Total
Table 3. Additional Alaska Lands Withdrawn Following ANCSA Agency Land Area, km2 (acres)
335 900 (83,000,000)
Four Systems d(2) TAPS Corridor Replacement lands 22(e) Native Withdrawals and Selections Withdrawn for Classification d(1) Additional state selections Total addltlonal Pro-ANCSA (Table 2) Grand total
28 300 16 187
(7,000,000) (4,000,000)
323 700 (80,000,000)' 182 100 182 100 1 068 400 441 100 1 !X9 500 (45,000,000) (45,000,000) (264,000,000) (109,000,000) (373,000,000)t
acres)]; Denali, an enlargement of Mount McKinley National Park [:I5 800 km2 (3,900,000 acres)]; Gates of the Arctic [33 200 km2 (8,200,000 acres)]; Glacier Bay enlargement [2230 km2 (550,000 acres)]; Katmai enlargement [5670 km2 (1,400,000 acres)]; Kenai Fjords [2300 kmz (570,000 acres)]; Kobuk Valley [6880 km2 (1,700,000 acres)]; Lake Clark [ l o 100 km2 (2,500,000 acres)]; Noatak [23 500 kmz (5,800,000 acres)]; Wrangell-St. Elias [44 500 km2 ( 11,000,000 acres)]; Yukon-Charley [6900 km2 ( 1,700,000 acres) I; Yukon Flats [42 900 km2 ( 10,600,000 acres)]; Becharof [4800 km2 (1,200,000 acres)]; Admiralty Island [4500 km2 (1,100,000 acres)]; and Misty Fjords [8900 km2 (2,200,000 acres)].
HOW FEDERAL-LAND AVAILABILITY FOR MINERAL EXPLORATION AND DEVELOPMENT IS LIMITED
'Not counting overlap with pre-ANCSA allocation. tAlaska ha8 a total of 1 517 600+ km2 (375.000.000+ acres).
3 ) State lands which are patented or for which patents tentatively have been approved are open to the discretion of the state. In the selection patenting process, there is a period during which BLM gives the state "tentative approval," after which the Statehood Act allows the state to enter into conditional leases. 4) Upon conveyance, native lands become private and could be leased by the natives. Prior to conveyance, leasing would be possible only on lands selected by the natives if they approved such leasing and if BLM classified the land as suitable. 5 ) The Four Systems will become available only after Congress acts on legislation creating the systems and only if allowed by Congress in that legislation. 6) Certain classified and other lands are to be opened only after completion of the appropriate classification. The 1872 Mining Law applies to the following: 1 ) Parts of national forests, state-patented and tentatively approved lands under state law, lands withdrawn for classification, and a portion of the Trans-Alaskan Pipeline System (TAPS) corridor are open to metalliferous mineral entry. 2) Additional lands could be opened to mining with the promulgation of classification regulations pursuant to ANCSA, 17 d( 1), and following favorable classification action. 3) At such time as Congress acts on the Four Systems legislation, some lands might become available. 4) Native-withdrawn and selected lands ultimately will become private lands, or, in those areas where the native corporations have selected more land than that to which they are entitled, the excess will revert to lands withdrawn for classification. Upon failure of Congress to act on ANCSA d ( 2 ) by the end of 1978, the Carter administration immediately withdrew 445 200 km2 ( 1 10,000,000 acres) of federal land in Alaska by using the emergency withdrawal powers of FLPMA Sect. 204, 90 Stat 2743. The land was withdrawn for a three-year study. Subsequently, 226 600 km2 (56,000,000 acres), most included in the original 445 200 km2 (1 10,000,000 acres), were withdrawn under the 1906 Antiquities Act to form 17 new national monuments. The new monuments proclaimed by President Carter were: Aniakchak [I420 km2 (350,000 acres)]; Bering Land Bridge [ l o 520 km"2,600,000 acres)]; Cape Kursentern [2270 km2 (560,000
The availability of lands for mineral exploration and development may be limited through various types of administrative decisions. The procedures used in arriving at such decisions depend upon which of the legal authorities is used. The major federal land-management agencies are the Forest Service (FS) and the Bureau of Land Management (BLM) . BLM policies and procedures are particularly important because BLM is responsible for all formal actions affecting the status of federal lands. Thus, BLM issues mineral leases and mining patents even on national-forest lands, and any withdrawal must be processed by BLM.
Formal Withdrawals Formal withdrawals are initiated by individual agencies under the procedures outlined in 43 CFR 2350, as modified by FLPMA, PL 94-579. Generally, there are three procedural systems followed in making formal withdrawals: (1) non-Interior agency withdrawals, (2) Interior agency withdrawals, and (3) military withdrawals of more than 20 km2 (5000 acres). Upon determination by an agency other than Interior that public lands should be withdrawn for agency purposes, a withdrawal application is filed with Interior. No specific form of application is required under 43 CFR 2351, but FLPMA requires that the actual or potential mineral value of the land be evaluated and that the mining-claim activities be documented. Upon receipt of the application, notation of the proposal is made on BLM land-status records. Within 30 days after receipt of the application, a notice of proposed withdrawal is published in the Federal Register and appropriate public notices, news releases, or posting in public places is provided. This action segregates the lands as provided in the notice, and this segregation may last for a period of up to two years. Interested parties are invited to comment on the proposals, and BLM conducts investigations necessary to ascertain the effects of the withdrawal proposal on existing users, resources, and the environmeni. Following this review process, negotiations with the applicant agency may be undertaken to modify the proposal and assure that the contemplated withdrawal involves minimum land area, allows maximum utilization of lands and resources, and eliminates or minimizes conflicts. A determination of the acceptability of the proposed withdrawals then is made. Except when de-
192

lack of detail in some sections of their reports affecting land withdrawals may reflect an agency's general inattention to land-management issues. It must be recognized that the primary functions of federal agencies range from single-purpose missions to multiple-use management of land resources, and many of the agencies' primary missions do not involve mineral development, Consequently, agency responses may not be opposed to mineral development, but they reflect a lack of responsibility in such development. Table 4 lists the involvements of various federal agencies in the procedure for mineral leasing or development. Dept. of the Air Force: The following paragraphs describe the Air Force involvement in policy making and land review. Mineral-Development Policy-Approval for surveying, exploration, or development of mineral resources on Air Force property is granted on an ad hoc basis. AFR 87-3 forbids leasing property controlled by the Air Force for exploitation of the land for oil, minerals, or phosphates. However, the transfer of administrative jurisdiction over minerals, presumably oil and gas, to the Dept. of the Interior for leasing may be undertaken if necessary to prevent drainage. AFR 87-3 (35) states: The taking or disposal of minerals from Air Force lands is not authorized. . . . However, license may be granted without charge to private interests to explore for minerals on Air Force-acquired land. . . . Prospecting licenses are issued only if such activity is of "direct benefit to the United States and when it does not interfere with the mission of the installation." No definition of direct benefit is provided. Application to explore for minerals is made to HQ USAF/PRER, and the application must detail an "assessment of the environmental impact of the exploration," as required by AFR 87-3 (41). Land Review-Holdings are monitored to protect against oil and gas drainage in accordance with AFR 87-3 (46). This involves informing HQ USAF/PRER if an oil operation is within 0.4 km (0.25 mile) of a reservation boundary or if a gas operation is within 0.8 km (0.5 mile). In addition to such notification, potential drilling sites on the reservation are identified. Otherwise, no continuing review takes place. Dept. of the Army: The following paragraphs describe the Army's involvement in policy making and land review. Mineral-Development Policy-The Army controls land for both civil and military use. Civil use generally refers to Corps of Engineers' (COE) projects, and the Army policy concerning lands acquired for civil purposes is to make the lands available for oil and gas leasing to fullest extent compatible with the operation and maintenance requirements of the project. Exceptions are listed in ER 405-1-930 ( 178(b) ). Land acquired by the Army usually includes the subsurface estate. However, when valuable mineral, oil, or gas rights exist and development would not interfere with project purposes, mineral rights are not required but are "subordinated to the government's right to regulate their development . . ." as specified in ER 405-1-620 (6-8). Although the Mineral Leasing Act for Acquired Lands, 30 USC 352, excludes lands set apart for military or naval purposes, the Army relies on
creed by direct congressional legislation, all withdrawals of public lands must be implemented by a public land order that is signed by the secretary of the Interior or his delegate. Prior to an Interior agency filing a withdrawal application, permission must be obtained from an assistant secretary. Before approval is given, comments regarding the effects of the proposal are sought from BLM. This requirement is unique to Interior withdrawals, and the application, once filed, is handled as though it was a non-Interior withdrawal proposal. Military Withdrawals: Applications for military withdrawals are handled in a manner similar to nonInterior requests. An exception occurs when the proposal involves more than a total of 20 km2 (5000 acres), and such withdrawals may be effected only by an act of Congress. Upon determining that a proposal for more than 20 km2 (5000 acres) is acceptable, Interior forwards a legislative proposal requesting congressional action, rather than writing a public land order. Classification: The major segregative effect of classification occurred under the now-expired CMU, although the segregations already made remain in effect. The other limitations on land availability are much more informal and primarily involve the practices of administrative agencies. The principal mechanisms for effecting the other limitations are the land-use planning systems utilized by several federal land-management agencies. Basically, these systems inventory all resource values for an area, identify possible land-use conflicts, and attempt to resolve the conflicts by developing an overall plan. The plan usually specifies the primary, sequential, or multiple uses that may be allowed. Such a system is dependent upon the decision-making ability of the land manager. In theory, the process is similar to zoning in urban areas, except that final landuse plans are more flexible. The special features of mineral resources may create some difficulties for such land-use planning systems. Mineral Reports: Before segregation from mineral entry under any of the three types of formal withdrawals, an evaluation of mineral potential is required. The relative values of the minerals as compared to other resource values must be weighed, and a decision must be reached as to whether or not the segregation should be imposed. BLM directives require that each case file be documented as to the actual or potential mineral value of the land and any mining-claim activities thereon. A recent BLM instruction reemphasized the importance of assessing mineral values, and it provided additional guidance for the preparation of reports. The directive requires that field examinations be conducted when mineral information is not otherwise available. Mineral reports for withdrawal actions also are prepared by other agencies. Consequently, mineral reports submitted in connection with withdrawal proposals have been of inconsistent quality, leading, in turn, to criticisms that mineral values have not been considered adequately when withdrawing public lands.
Federal Agencies' Policies and Practices Most of the federal agencies have major functions apart from the management of public lands. Hence, a
Table 4. Federal Agency Land Under Jurisdiction wlth Establlshed Procedures for Mlneral Leasing or Development Total Area, km2 (acres)
1 903 401 (470,340,620) 757 763 (187,247,352) 33 798 (8,351,578) 44 570 (11,013,386) 14 446 (3,569,620) 31 571 (7,801,245) 8 521 (2,105,588) 3 742 (924,660) 100 440 (24,819,244) 124 691 (30,811,823) 20 109 (4,969,051 ) 30 484 (7,532,715) 405 (100,022)
Agency# BLM, pre-ANCSA FS

Air Force
Oil & Gas Under 1872 Publlc Domain, Acquired Land, Mineral Drainage Hard-Rock Mlning km2 (acres) Leases* Law* km2 (acres) Leases* Only*
1 893 883 (467,988,730) 648 280 (160,133,401) 28 031 (6,926,719) 28 610 (7,069,598) 9 385 (2,319,034) 2 958 (730,995) 5 821 (1,438,470) 9 518 (2,351,890) 109 483 (27,053,951) 5 776 (1,424,859) 15 960 (3,943,788) 5 061 (1,250,586) 28 612 (7,070,250) 2 700 (667,118) 3 742 (924,660) 20 171 (4,984,459) 15 865 (3,920,429) 3 093 (749,201) 7 560 (1,868,169) 63 (15,671)
Yes Yes
C C
Yes Yes
Yes Yes
Yes Yes
C
U
NO
No
U
NO
No No
NO
Army Navy COE DOE T V A

N PS
c5
No
U
No No
Yest
No
U
Not
U
MIS BIA B R DOTICG
80 269 (19,834,785) 108 826 (26,891,394) 17 016 (4,204,849) 22 924 (5,664,545) 341 (84,351)
C No5 C
U
N o
Yes
No No C
U
C N o No No
C
Yes
No
No
N o
"Yes" means procedures exist, although a lease application may be denied. "No" means procedures do not exist. "C" means procedures exist only for certain land or that access is permitted on an ad hoc basis. "U" means that the procedures are uncertain. t Except uranium leases. t Refer to PL 94-429. O Access may be allowed for oil and gas only. # ELM. Bureau of Land Management; FS, Forest Service; COE. Corps of Engineers; DOE. Dept. of Energy; TVA, Tennessee Valley Authority; NPS, National Park Service; FWS, Fish and Wildlife Service; BIA, Bureau of Indian Affairs, nonreservation; BR, Bureau of Reclamation; DOTICG, Dept. of TransportationICoast Guard.
40 Op. Atty. Gen. 7 to allow leasing if the drainage of oil and gas reserves is occurring. For procedural purposes a distinction is made between public lands and acquired military lands, and ER 405-1-830 provides the procedural framework for lands in the public domain. Requests for oil and gas leases received by BLM or the Army are forwarded to the district engineer, and the request is transmitted "through appropriate channels" for determination of the land availability. The pertinent criterion is whether or not the granting of a lease would interfere with the military use of the land. Hard-rock minerals are not addressed. When drainage of oil and gas reserves from acquired lands is suspected, the district engineer may make a base-line determination of nonavailability for leasing, but a decision to allow leasing must be made by the chief of engineers after an appropriate survey by the Dept. of the Interior has disclosed evidence of drainage. Licenses may be granted to private parties to conduct seismic or gravimetric surveys to determine the oil and gas potential of Army lands outside the public domain, provided that the licensee furnishes results of such surveys to the regional oil and gas supervisor of the US Geological Survey (USGS) and the commanding
officer of the installation and/or the district engineer, as specified in ER 405-1-860 (12f). ER 405-1-800 provides procedures for general use of military-controlled property by private organizations and individuals. No specific mention is made of minerals, and there is no indication that the regulation has been employed to allow mineral development. Land Review-Lands owned at military installations or civil projects located in oil and gas development areas are studied frequently to determine the proximity of oil and gas wells and the possibility of drainage, as specified in ER 405-1-830 (179). If there is a possibility of drainage of oil and gas reserves from military lands, the Dept. of the Interior is requested to "study the situation with the view of protecting the interests of the United States." Otherwise, no continuing review takes place. Dept. o f the Navy: The following paragraphs describe the involvement of the Navy in policy making and land review. Mineral-Development Policy-Withdrawals are "analyzed in relation to present and potential uses of . . . under existing public land land for private laws to determine the precise private uses that are compatible with the military requirement." This is set forth
194
UNDERGROUND IWlNlNG METHODS HANDBOOK

potential value for uranium production. Conversely, TVA disapproved a requested coal lease 011 TVA land where the operator would have supplied power plants other than those controlled by TVA. Ostensibly, TVA administers its land on a multipleuse basis according to TVA Code V-1. Under the procedures adopted by the Dept. of the interior and TVA, TVA files applications with Interior, which in turn requests the director of the property and supply division of TVA to furnish certain information relevant to possible interferences with current or contemplated uses of the land. TVA consent to the issuance of leases appears to be mandatory, but, under present TVA policy, no applications for oil and gas leases have been approved recently by TVA. Apparently, TVA hopes to develop these resources itself at some time in the future. Land Review-TVA Code V-2 contains the following statement: TVA reviews lands in its custody to identify the primary purposes for which they are needed, and other compatible immediate or prospective use or disposition which may best serve in furthering the broad objectives of the TVA Act. Comments of public and other governmental entities are considered. Forest Service: The following paragraphs describe the involvement of the Forest Service (FS) in policy making and land review. Mineral-Development Policy-National forest lands in the public domain are open to location and entry under the Mining Law of 1872, subject to surface-use regulations promulgated on Sept. 1, 1974. These lands also are subject to the provisions of the Mineral Leasing Act of 1920, but may include FS recommendations for conditional leasing. Recent legislation specifies consent rather than just recommendation for coal and geothermal leasing. Acquired lands are leased in accordance with the 1947 Acquired Lands Leasing Act for leasable minerals, and hard-rock minerals are leased in accordance with the president's Reorganization Plan No. 3 of 1946. All mineral leases on acquired lands are issued only with FS consent. Wilderness and roadless areas proposed for wilderness are administered in conformance with the Wilderness Act of 1964 and FS regulations. Primary emphasis is on wilderness preservation, with very strict conditions for mining activities. Formal withdrawal requests are made through an assistant secretary of the Dept. of Agriculture to the Dept. of the Interior, and the request then is transmitted to BLM for processing in accordance with their regulations. FS land-use planning is well advanced and eventually will cover the entire national forest system. Access to and use of areas for mineral development may be restricted moderately to severely or even prohibited through these land-use plans. Land Review-It is FS policy that lands not needed for the purposes for which they were withdrawn should be restored to access for mineral development in accordance with FS Manual, Sec. 2862. There appear to be no regular reviews of the withdrawals or administratively restricted areas. DEPT. OF THE INTERIOR The Dept. of the interior has a number of agencies with differing and sometimes conflicting programs.
in the Navy Real Estate Procedures Manual 15-1 1. NAVYAC P-73. Land Review-Although the Navy policy is to relinquish lands determined to be unneeded, there are no apparent procedures existing to implement the policy. Energy Research and Development Administration: The following paragraphs describe the involvement of the Energy Research and Development Administration (ERDA) in policy making and land review. ERDA now has been reorganized into the Dept. of Energy (DOE), but the following paragraphs will continue to reference ERDA. Mineral Developtnerlt Policy-Allhough there is no ERDA-wide policy against mineral activity on acquired lands, such activity usually is determined on a locationby-location basis to be incompatible with ERDA programs. ERDA has developed no specific policies or procedures pertaining to mining on lands withdrawn from the public domain for use by the agency. Under ERDA Manual Appendix 5301, Part V(b) (1 ), revocable leases, permits, licenses, or similar documents may be issued for use by private parties on real property owned or used by ERDA if ERDA determines that such use will not be inconsistent with its own use of the property at the present time or in the foreseeable future. Provisions are made in 10 CFR 60.8 for competitive bidding for uranium leases on lands controlled by ERDA. Provisions are made in 10 CFR 61.9 for the issuance of uranium-prospecting permits and mining leases on lands administered by federal agencies that do not have the authority to lease such lands. Under the authority of the Atomic Energy Act of 1959, 42 USC 2011, 2097, ERDA may issue permits and leases for uranium on public lands not otherwise open to location under the mining laws. ERDA exercises discretion in the issuance of all such leases and permits. Land Review-ERDA does not have a general policy on the review of the mineral values of lands it administers. However, real-property holdings are surveyed during the final quarter of each fiscal year, and those found not to be required for minimum operating and program needs, minimum physical security standards, and health and safety standards are to be disposed of as excess, subject to any required prior approvals. This is defined in ERDA Manual Appendix 5301, Part VI(A) ( I ) . The initial survey is to be conducted by each field office and approval of the recommendations must be made by the assistant for economic and community affairs. National Aeronautics and Space Administration: The National Aeronautics and Space Administration (NASA) follows a case-by-case determination for oil and gas leases. Although leasing has been allowed at an installation at Bay St. Louis, MO, leasing has been denied at the Kennedy Space Center in Florida. The criteria for decisions are unknown, and NASA's policy regarding hard-rock mineral extraction also is unknown. Tennessee Valley Authority: The following paragraphs describe the involvement of the Tennessee Valley Authority (TVA) in policy making and land review. Mineral-Development Policy-TVA policy strongly favors entry to recover energy-producing minerals, particularly where such resources are available for TVA programs. For example, TVA sought to alter a wild and scenic river proposal to exclude a river segment that had
National Park Service The responsibility is divided between three agencies for the onshore mineral resources that may be developed within units of the national park system under the Mineral Leasing Act of 1920. These responsibilities are defined in secretarial order No. 2948, Oct. 6 , 1972, and they are defined further in a Jan. 27, 1974, working agreement between BLM and USGS. BLM is responsible for the adjudication of federal leases through the issuance of the lease. Upon issuance of the lease, USGS responsibility commences with overall supervision of the operations. The National Park Service (NPS), as the surface-managing agency in areas containing federal leases, has an input as to the conditions or requirements to be imposed to protect other park resources. Three units of the national park system are open to mineral leasing, namely Glen Canyon National Recreation Area, Whiskeytown National Recreation Area, and Lake Mead National Recreation Area. Leases in these units are at the discretion of NPS. Fish and Wildlife Service All units of the national wildlife refuge system theoretically are open to mineral leasing. However, under Fish and Wildlife service (FWS) policy, no mineral development is authorized, except that oil and gas leases can be issued if USGS determines that refuge lands are being drained. Leases issued under such circumstances contain stipulations necessary to assure minimum damage to wildlife resources. In Alaskan wildlife areas, FWS and BLM have entered into an agreement designating lands open to oil or gas leasing. The current agreement opens only the Kenai National Moose Range. Only portions of three units of the national wildlife refuge system currently are under the mining laws. These are a small portion of the Sheldon National Antelope Range in Nevada and the Clarence Rhode and Cape Newenham Refuges in Alaska. All remaining national wildlife refuges are closed to the operation of the mining laws, primarily by secretarial order. Bureau of Land Management BLM's policy statement for mineral development is contained in BLM Manual 1605.12B. This policy calls for assuring that mineral exploration, development, and extraction are carried out in such a way as to minimize environmental and other resource damage. It also provides for rehabilitating lands affected by such operations. Long-term objectives include making energy minerals available for use on a managed and controlled basis consistent with national energy policies and making other minerals and mineral materials available for use as needed to meet market demand.
195
In administering the mineral estate on withdrawn lands where such estate is not foreclosed from mineral development, BLM policy is to permit development with the withdrawing or holding agency's concurrence. Bureau of Reclamation The Bureau of Reclamation (BR) directives pertinent to mineral leasing are contained in parts 215.5.23 and 215.5.24 of BR instructions. BLM processes such applications on BR lands. For oil and gas leasing, applications lying within the flowage limits of an existing reservoir or reservoir site are recommended for rejection unless "slant" or "whipstock" drilling from adjacent lands is feasible. If immediate construction of a dam is not contemplated, drilling may be allowed with the stipulation that the lessee will move to an offsite location and employ slant drilling when the land is needed by BR. Other mineral leases may be allowed by BLM at the discretion of BR, and no guidance exists on this point. Mineral leases on BR-withdrawn national forest lands are handled by FS for other than oil and gas development. Clearance is obtained from BR, but no specific guidance exists as to when such actions should be allowed.
SUMMARY
Congress and administrative agencies employ a wide variety of legal mechanisms to limit the availability of mineral lands. Some formal restrictions like withdrawal, classification, or reservation can limit mineral development inflexibly. Less formal restrictions like reclamation regulations or land-use planning decisions operate more flexibly, but are less open to public scrutiny. All of these methods are supported by statute, judicial decision, or congressional acquiescence, and all influence the availability of federal mineral lands to varying degrees. Table 5 lists the major protected areas of federal lands as of 1978.
REFERENCES AND BIBLIOGRAPHY Bennethum, G., and Lee, L.C., 1975, "Is Our Account Overdrawn?" Mining Congress Journal, Sept. Metz, P.A., Pearson, R.W., and Lynch, D.F., 1978, "Compilation of Data on the Land Withdrawals in Alaska," Mineral Industry Research Laboratory, University of Alaska, Report No. 40, Jan. Rocky Mountain Mineral Law Foundation, n.d., T h e American Law of Mining, Boulder, CO. Task Force on the Availability of Federally Owned Mineral Lands, 1976, Final Report, USGPO No. 024-00000834-7, US Dept. of the Interior. Wheatley Jr., C.F., 1969, "Study of Withdrawals and Reservations of Public Lands," Vol. 1-3, prepared for the Public Land Law Review Commission.
Table 5.
Major Protected Areas of Federal Land (1978)-Mlnerals Public Domain Lands Mining Laws
All minerals All minerals
for Which Development Would Not Be Allowed Acquired Lands Approximate Acreage
(million) 4.2 13.6
Category
National parks and monuments Military reservations and bases
Approximate Acreage (million)t

19.8 17
Leasing Laws
All minerals All minerals BLM may issue oil and gas leases in some cases
Leasing Laws
All minerals All minerals BLM can issue leases in some cases, i.e., Corps of Engineers
Reference'
Wheatlev. C. F. ~ r e p & e dfor the Public Land Law Review Commission Vols. 1, 2, 3, 1969 See'PL 94-377 Sec 121al
Cz 0
Z 0
rn
3 0
.-,
3 C,
Z Z Z
Naval petroleum, oil shale, coal reserves 0.1 Petroleum reserve No. 4 23.0 Petroleum reserve buffer zones Alaska native claims settlement Native selections Four systems General Purpose ANLSA withdrawal 120 83 46 0.1
All minerals Open to oil and gas exploration only Oil, gas, helium PL 94-258 (1976) 43 CFR 3101.1-1 PL 92-203 (197: 1 (85 Stat 688) Sec. 11 Sec. 17(d)(2)
C,
3 -
rl I
0
0
V)
All minerals All minerals Open to metalliferrous only--some former (d2) is not ooen to metaliiferrous All minerals (formally closed 1984) Defacto exclusion of all minerals Perhaps some exception for small operations Nonmetalliferrous only 5.3
All minerals All minerals All minerals
Wilderness preservation system (Forest service only) Primitive areas (Forest service) Roadless areas (Forest service)
X
12.5 All minerals Included in public domain statistics (leasing) PL 88-577 (1964)
3.8 67.0
All minerals Some oil and gas on case by case basis
Final EIS (P87) Roadless and undeveloped areas Forest Service Oct. 1973 Public Land Order 5150 Dec. 31, 1971
Utility corridor Alaska
2.5
All minerals
Oil shale Wyoming, Utah, Colorado
8.0 3.7
Nonmetalliferrous Metalliferrous minerals
All minerals except oil and gas, sodium Sodium where it disturbs oil shale
Executive Order 5237 Apr. 15, 1930 Public Land Order 4522 Fed. Register Sept. 24. 1968 p. 14349 3.7 All minerals, leasing Separate executive at discretion of FWS withdrawal Essentially restricted Orders and proto drainage oil and proposed withdrawals gas leases PL 94-377, Sec. 16 for coal Executive Order 8592 Nov. 1940 All minerals TVA policy as of 1976 Included in left column Included in left column Included in left column Included in left column Included in left column All minerals some exceptions 43 CFR 3109.3-1
Fish and wildlife refuges
18.6
All minerals
All minerals Kenai Moose Range open to oil and gas leases
m
Z
Alaska Clarance Rhode Cape Newrenham Tennessee Valley Authority
3.0
Uncertain
5
; D
0
Z Z
3
m
r
0.9
Wilderness (Bureau of Land Management) 0.2 Primitive areas Designated and pending 5.5 Primitive areas Roadless study 4.0 Areas Power site withdrawals 1.2
0
Defacto all minerals Defacto all minerals Uncertain All minerals All minerals Oil and gas case by case basis allowed Some leasing permitted 90 Stat 2743 PL 94-579 Sec. 603
Z ("
0 m
; D
0
Z V)
Location permitted with restriction in some areas
43 CFR 3731.1 69 Stat 681

4 3 CFR 2091.2-5
Proposed withdrawals
- -
1.0
-
All minerals unless All minerals unless otherwise soecified otherwise specified All minerals exceptions for metalliferrous minerals All minerals exceptions for oil and gas
Miscellaneous Agenda land and land devoted to specific programs
Bennethum, Lee Mining Congress Journal, Sept. 1975
Table 5.-Continued Approximate Acreage (million)t

20.9
Public Domain Lands Mining Laws

All minerals
Acquired Lands Approximate Acreage Leasing Laws

'
Category
Miscellaneous closed to mining by public
Leasing Laws
Few leases ever issued
Reference*
Public Land Order 1725 Sept. 11, 1958 Withdrawing from mining but not from leasing Utah State office opinion U-2674 rejecting oil and gas lease application
Wild and scenic rivers Wild Scenic Recreational Proposed exclusive of Alaska Atomic Energy Commission Surface land reserved for Indian purposes reservation
0.5 All minerals All minerals Severe restrictions All minerals Perhaps some oil and gas in recreational or proposed areas Included
PL 90-542 16 USC 1280 82 Stat 906 Oct. 2. 1968 see %LA 76-182'
m XI t ,
0.5 1.4 All minerals minor exceptions All minerals except uranium All minerals except uranium 42 USC 2011,2097 10 CFR 60.8
Z Z
z z
t ,
7 I
0
0
V)
0.6
All minerals
Some oil and gas if complex agreement with B.I.A. approved
25 CFR 171 PL 94-114 Oct. 17, 1975 Alaska Native Statehood Act 72 Stat 341 77 Stat 223
I D Z
0
State selections pending patents or unperfected
m
0 7 0
All minerals All minerals (available in Alaska (see state state agreement) authorities)
Alaska Native Statehood Act 72 Stat 341 77 Stat 223
Midwest exclusion from the mining law
1.6
All minerals in public domain of Minnesota. Wisconsin, Michigan, Missouri

-
30 USC 48:49
Incorporated towns and villages
All minerals if withdrawn by Public Land Order
All minerals
All minerals
43 CFR 3502.1 -5 43 CFR 3501.2-1 (d)
Small tracts. recreation (R) and public purposes (PP)
0.5
All minerals
All minerals Some oil and gas leasing might occur in R and PP land
~
Perhaps minor leasing in R and PP land

-
43 CFR 2731.2(b) 43 CFR 2741.6(d)
National trails Existing Proposed
0.1 0.3
All minerals All minerals if incompatible with purpose of a trail
All minerals
82 Stat 919 Oct. 2, 1968 16 USC 1240
Lands held under mineral lease (95% oil and gas 90
Locatable if mining would not disturb leased deposit All minerals except salable, i.e., sand and gravel
Any mineral that is not compatible with existing mine plan All minerals except leasable minerals if claim was located after Aug. 13,1954 and mining is compatible with locator All minerals except leasable minerals where patent issued after Aug. 13,1954 All minerals
Included in left column
43 CFR 3740 68 Stat 708 30 USC 521

43 CFR 3712 43 CFR 3741.4
Lands under unpatented ? mining claim
Patented mining claims
3.6
All minerals
- - -- -
Misc. (partial listing) ? Endangered Species Act Bald and Golden Eagle Protection Act Anadromous Fish Conservation Act
' 43 CFR
Uncertain
16 USC 1531 (1973) 16 USC 668 16 USC 757(a)
3740 means Title 43 Code of Federal Regulations, Subchap. 3, Gr. 7, P.0, Subpt.l.30 USC 521 means Title 30, United States Code, Sec. 521.68 Stat 708 means United States Statutes at Large, Vol. 68, Page 708. PL 88-577 (1964) means Public Law 88-577 passed in 1964. t 1.0 acre = 4048.9 ma or 0.004 km2.

Chapter 2. Protected Areas

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Chapter 2. Protected Areas

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Chapter 2.

L. COURTLAND LEE GARYBENNETHUM

TOWNSHIP 0 SOUTH RANGE 00 W E S T O F T H E 6 T H PRINCIPAL MERIDIAN, COLORADO

Torwhip I . Iocotrd and Cwnly Coda

W~~C~FADAMS COUNTY 001 STATUS OF PUBLIC DOMAIN

LAND AND M I N E R A L T I T L E S AND ACQUIRED L A N D S -~d.j.d

JUNEW FlLLO (00

.tDt"~ pYrpOle and furnilhad public or0 dole stomped

All Tp Plots raflect X ~ i a ~ r i and c t~ r e o Offlcal 6 th M n Mar T . R.

Fig. 1 . Typical plat of land in the public domain.

UNDERGROUND MINING METHODS HANDBOOK

B M publications B L M publications State publications FS publications DOE publications

'In all cases, consult federal and state environmental regulators.

UNDERGROUND MINING METHODS HANDBOOK

3 METHODS HANDBOOK UNDERGROUND MININ(

UNDERGROUND MINING METHODS HANDBOOK

UNDERGROUND MINING METHODS HANDBOOK

Agency# BLM, pre-ANCSA FS

Army Navy COE DOE T V A

MIS BIA B R DOTICG

UNDERGROUND IWlNlNG METHODS HANDBOOK

Approximate Acreage (million)t

All minerals All minerals All minerals

All minerals Some oil and gas on case by case basis

Utility corridor Alaska

Oil shale Wyoming, Utah, Colorado

Nonmetalliferrous Metalliferrous minerals

Fish and wildlife refuges

Alaska Clarance Rhode Cape Newrenham Tennessee Valley Authority

Location permitted with restriction in some areas

43 CFR 3731.1 69 Stat 681

Miscellaneous Agenda land and land devoted to specific programs

Bennethum, Lee Mining Congress Journal, Sept. 1975

Table 5.-Continued Approximate Acreage (million)t

Public Domain Lands Mining Laws

Acquired Lands Approximate Acreage Leasing Laws

Some oil and gas if complex agreement with B.I.A. approved

State selections pending patents or unperfected

Alaska Native Statehood Act 72 Stat 341 77 Stat 223

Midwest exclusion from the mining law

All minerals in public domain of Minnesota. Wisconsin, Michigan, Missouri

Incorporated towns and villages

All minerals if withdrawn by Public Land Order

43 CFR 3502.1 -5 43 CFR 3501.2-1 (d)

Small tracts. recreation (R) and public purposes (PP)

Perhaps minor leasing in R and PP land

43 CFR 2731.2(b) 43 CFR 2741.6(d)

National trails Existing Proposed

All minerals All minerals if incompatible with purpose of a trail

82 Stat 919 Oct. 2, 1968 16 USC 1240

Lands held under mineral lease (95% oil and gas 90

Included in left column

43 CFR 3740 68 Stat 708 30 USC 521

Lands under unpatented ? mining claim

Patented mining claims

16 USC 1531 (1973) 16 USC 668 16 USC 757(a)

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