Interior Board of Land Appeals Confirms Right of Access to Mining Claims Across Public Lands

A recent Interior Department Board of Lands Appeals holding stands outside the current trend of federal agencies to provide wider protection for the public lands against private commercial uses. In In Re Alfred E. Koenig, 2 ELR 30002 (October 26, 1971), the Interior Board of Land Appeals held that the mining laws of the United States give the owner of a mining claim a nonexclusive right of access to the claim across public lands. Consequently, the claim owner does not have to obtain a special use permit before constructing an access road.

In this case the manager of the Glenwood Springs, Colorado, District of the Bureau of Land Management denied a claim owner's application for a special use permit which would allow him to continue use of an access road which he had built across public lands surrounding his claim. The district manager's decision was based on the State of Colorado's expressed intent to select the land involved.¹ The Board held that the Bureau had no authority to deny access across public lands, if the road would be kept open for public use.

The Koenig decision cannot withstand close legal scrutiny. The Board's decision relies upon a Solicitor's opinion of 1959 (66 I.D. 361), which was cited with approval in U.S. v. 9,947.71 Acres of Land, 220 F. Supp. 328,332 (D.C. Nev. 1963). The Solicitor's 1959 opinion begins by affirming that "the genesis and history of the mining laws make it clear that Congress intended [1] to give the miner free access to minerals in the public lands and [2] to leave him free to mine and remove them without charge." 2 ELR 30002. Koenig clearly raises a question of free access to minerals in the public lands, not one of removal without charge. The Solicitor's opinion, however, cites Congress's refusal in the 1860's to lease minerals under public lands in order to raise revenue as evidence of Congress's intent that miners be assured a right of free access across public lands to their claims. This evidence does not support the conclusion. Congress might well place conditions on access without imposing a charge for the extraction of minerals.

Significantly, the same criticism applies to the 9,947.71 Acres case, which cites with approval the Solicitor's 1959 ruling. In that case the key question was whether a rental charge could be exacted for a road which had been built across public lands to reach a mining claim. The court held that such a charge could not be imposed. The imposition of charges on mining on the public lands can be treated separately from the issue of control of access to claims across public lands, and should have been treated separately in the 1959 opinion.

The majority of Board decisions cited in the 1959 Solicitor's opinion support that opinion only by weak inference. The Board cites several of its earlier decisions, in which miners were allowed to count expenditures for roads toward their assessment and patent work,² as evidence that mining claimants have an unfettered right to put roads across the public lands. The Board begins its discussion of these cases by implicitly conceding that it is speaking of Departmental policy only and that this policy supports the rather limited conclusion that roads are "necessary and complimentary" to mining activities. The inference is unwarranted that allowing expenditures for roads to be counted toward assessment necessarily implies that miners have an unfettered right to build roads to their claims across the public lands. To determine that road construction may be reasonably incident to maintaining a claim is quite different from determining that the Department cannot control whether, or how, roads are constructed.

One of the most remarkable aspects of the Koenig case is that it appears to have been decided in part on a statute not even mentioned in the opinion. Yet no other conclusion seems possible, given the great care which the Board took to impose a condition that the road be kept open for public use. An antiquated law, whose purpose has long since been overtaken by changed circumstances on the public lands, states that "the right of way for the construction of highways over public lands, not reserved for public uses, is granted. (R.S. § 2477.)" Act of July 26, 1866, 14 Stat. 253, 43 U.S.C. § 932. Yet it is more logical to exclude the public from claim owner Koenig's "highway" than it is to allow the public on it, for reasons of safety, convenience to the mining operation, and control of abuse to the public lands. The Board's decision requires this illogical result, apparently to satisfy an antiquated statute which is not cited or discussed in the Board's ruling.³

It is particularly surprising in this day of heightened environmental concern that the Board in Koenig did [2 ELR 10016] not re-examine the views expressed in 1959 by the Office of the Solicitor. Examination of the question appears to be especially warranted in light of the National Environmental Policy Act of 1969. It might well be possible, for example, to reach the conclusion that Title I of NEPA, which states the national environmental policy, has supplanted the implied right-of-way theory on which Koenig rests (if in fact there ever were a basis in law for the implied right-of-way). The leading case on agency reliance on NEPA for authority to expand environmentally protective activities is Zabel v. Tabb, 430 F.2d 199 (5th Cir. 1970).

A Board decision handed down exactly six months earlier, In re J. D. Archer, 1 ELR 30035 (May 26, 1971), stands in stark contrast to Koenig and offers a much more enlightened view of the Department's powers under NEPA. The Archer decision concerned a challenge to the Bureau of Land Management's recently prepared regulations for the protection and restoration of areas affected by prospecting. The Board held:

We find no basis to conclude … that such requirements are unnecessary, unreasonable, arbitrary or unduly onerous. On the contrary, such requirements are reasonably related to the environmental ethic of this Department and to the obligations of this Department under the National Environmental Policy Act… 1 ELR 30035.

Many other agencies have used NEPA to buttress their efforts to protect the environment. The Department of Agriculture, for example, has found NEPA a new source of authority for issuing proposed regulations governing mining on national forest lands. The draft 102 statement accompanying the proposed regulation states that NEPA confers ample authority upon the Department to issue such regulations. The draft regulations, which were released to selected recipients on March 23, 1971, unfortunately have been held from publication in the Federal Register, ostensibly under the public property exemption contained in § 4 of the Administrative Procedure Act, 5 U.S.C. § 553(2), 1 ELR 41002. (However, the Department of Agricultures has proposed that it not take advantage of this exemption in the future. 36 Fed. Reg. 13804 (July 24, 1971).)

Even if direct authority cannot be found in NEPA for controlling abuses of the public domain, nevertheless NEPA provides in § 102(2) (C) for the detailed study of federal actions which might have a significant environmental impact. While the Department of Justice and the Solicitor's office may have informally examined the impact of the policy behind Koenig as-early as 1963, the Interior Department in 1971 is obligated by NEPA to conduct a detailed, formal study of the impact of that policy. Moreover, the Department is further obligated to go on to make a decision which balances the environmental impacts uncovered by the § 102 study against the suggested benefits. See Calvert Cliffs' Coordinating Committee v. AEC, 1 ELR 20346 (D.C. Cir. July 23, 1971). It would appear from Koenig that the Department has failed in this duty.

1. Colorado wanted to make a special "indemnity selection." Such a selection, or exercise of a legal right to land, arises from the reservation to the states of certain plots of land from the federal domain. In this instance, it appears that the plot or plots to which Colorado would normally be entitled were unavailable, probably because of prior federal appropriation, so that Colorado was entitled to make an indemnity selection.

2. Claim owners must show that they have expended at least $100 a year on their claims to protect them from third parties and from the federal government. The government's power to extinguish the claim (pedis possesio) is discussed in the Oil Shale cases, Oil Shale Corporation v. U.S., 309 U.S. 599, 27 L. Ed. 2d 193 (1968); Hickel v. Oil Shale Corp., 400 U.S. 48, 47 L.Ed. 193 (1970).

3. The same statute, incidentally, is the basis of the State of Alaska's claim to the right to construct the access road for the northern terminal of the proposed Alaskan pipeline.