chapter 2. protected areas

7/28/2019 Chapter 2. Protected Areas

1/18

Chapter 2. Protected AreasL. COURTLANDEEGARYBENNETHUM

INTRODUCTIONFor any identified mineral resource to qualify as aminable reserve, it must contain legally and economi-cally extractable mineral at the time of determination.As competition for land has increased, the legal com-

plexities have more than kept pace, frequently becomingthe most important determinant in mineral explorationand development projects. Rarely will developers of aproject avoid having to obtain numerous federal, state,and/or local permits while acquiring the necessary legalpermission to begin mining. Each site must be selectedcarefully, not only for economic feasibility, but also forlegal feasibility.Although it is impossible to present site-specificsolutions for all potential underground developments,certain generalizations may be applied to specific land

categories, particularly federally owned land. Suchfederally owned land includes more than 33% of theland area of the United States and many of the areaspotentially attractive for future development. State andlocal restrictions affect a large portion of the nonfederalland, and those restrictions are equally important eventhough their diversity and current status require moreregional study than can be provided herein (the list ofreferences include sources of additional information).

Each potential mining site requires a title search ofthe land status to determine the land ownership and theconditions affecting development. In addition, appro-priate data concerning the mineralogic and economicpotentials of an area must be collected. As listed inTable 1, many sources of public information are avail-

the sale of state lands with a reservation of the mineralsand legislation recognizing or asserting the sovereignprerogative for precious metals. In 1781, a Pennsylvaniastatute reserved 20% of all gold and silver ore for theuse of the commonwealth. Thomas Jefferson suggestedthat a portion of all gold and silver be retained by thefederal government. These early rules affecting land inthe eastern states, now privately held, have been re-pealed, declared obsolete, or largely ignored.Federal legislation prior to 1848 and affecting min-ing may be classified as legislation reserving the mineralsto the United States and legislation authorizing thedisposition of reserved minerals by sale, lease, or grant.With many modifications, these basic policies remain ineffect at the present time.A 1796 act provided for the sale of the Northwest

Terri tory and for the establishment of the present systemof rectangular survey for public lands. The Lake Su-perior copper region was the scene of "wild and baselessexcitement in 1837" when the attorney general con-cluded that the president had the power to lease lands inWisconsin; this opinion soon was overturned by anotherattorney general. By 1846, Congress had passed legisla-tion authorizing the president to sell reserved lead mines"as soon as practicable" since the system of grantingLeases had proved to be unprofitable to both the govern-ment and the lessees, many of whom refused to pay therent.The general practice of early federal Legislation wasto make a distinction between mineral lands and otherlands, deal with them separately, and generally withhold


2/18

mineral lands from disposal except through special

TOWNSHIP 0 S O UT H RA NG E 00 WE S T O F T HE 6T H P R I NCI P AL M E RI DI AN , CO LO RADON a a of County inW~~C~FADAMSOUNTY 001EXPLANATORY Torwhip I Iocotrd andTOWNSHIP Cwnly Coda \ Spoca lor T~tla f Plat,whelhar Mo*ter Till. or1

tWithdr~wolLlna, usmd tor Notionof Fore.1 Boundary,, Lot Acrroga- 4 3s10 13 3.40 12 31.10 11 %.ID ~ T i & m o r k s , r e p r ~ s ~ n t i n gFlsh ond Wlldlifo Rafugos, Rtroloum Reaorvo a te - I I subd~ririonhnsIdonlificotion of~ i t k d r a m l ~ r d o r > t.-.-.-'-.- - b0tws.n lot s

5 4 3 I 2 ISO 2 / 9 / / 9 C U

Land, hotchtng onI .,.."A .* I

S C A L E10 5 0 13 20 30 6030 Crn8nl rothe och

STATUS OF PUBLIC DOMAINLAND AND MINERAL TITLESAND ACQUIRED LANDS ~d..d 0%"\T P L A T applicobl.f ac t s

FOR (LPDC4S EFFECTIN6 @SPOUlL MU SE OFUH!MNTIFIED LANOS WITHD Rm FOR CL4SS-I F I C ~ T , ~ .w c n u s , WATER NO/OR OTHERPUBLIC PURPOSES, REFER TO IN MX OFNISCEL L N CW S OOCUNENTSreinoinEO1/09 5/2//9/2 Udl Son s Nf

UA, JUNEW FlLLO (00 PLAT ONLTJs 10 lh," IS. .!I

lBBREVllTlONS fovnd on PLATS and/or H I.C4YPQROUYD CPQEASEPENT E sm tFR lRd.ro Il.(ll%I.rl FRGEOTHERMAL STEAM GooPROTECTON 01 REC VALUES P mWRVEI, SURVEYED SurUNDERGROUND UndadUNDETE YNED Und1UNT bGREEYEWT U4UNSURVED Ynwr

.tDt"~ pYrpOleand furnilhad CC Do All Tp Plots raflectpublic or0 X ~ i a ~ r i c tnd ~ r e odole stomped Off lcal6 th M n MarTR.

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


3/18

184 UNDERGROUND MINING METHODS HANDBOOK

Table 1. lnformation SourcesOwner Gene ral Tltle Speci fic TitleSurface and Mlneral OwnemhlpFederal BLM mineral ownership maps. BLM land plats.State BLM mineral ownership maps. BLM land plats and state's Dept. of Lands.County BLM mineral ownership maps. BLM land plats and county court records.Indian BLM mineral ownership maps. BLM land plats and county court records.Private BLM mineral ownership maps. BLM land plats and county court records.Owner Tltle- - -Condltlons for Mlneral Development'FederalStateCountylndianPrivateMlneraCResource InformationUSGS publications

BM publicationsBLM publications

State publicationsFS publicationsDOE publications

BLM 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 MR series).Miscellaneous geologic investigations maps (I series).lnformation circulars, investigation reports, river-basin studies.Land-use plans, unit-resource analyses (present status and potential fordevelopment), BLM 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.

'In a ll cases, consult federal and state environmental regulators.

government as a result of mineral development. At thattime, mineral patents cost $5.00 per acre for lode claimsand $2.50 per acre for placer claims (1.0 acre = 4046.9for the development of their mineral deposits; landsacquired by foreclosure or other means for resale; landsacquired as surplus under the Surplus Property Act of


4/18

ENVIRONMENTAL CONSIDERATIONS 185to the secretary of Agriculture for disposal of commonvarieties in acquired lands as well as several nationalforests.

In 1976, federal mineral-disposal legislation took anew twist with the enactment of the Federal Coal Leas-ing Amendments Act and the Federal Land Policy andManagement Act (FLPMA) . These acts required com-prehensive land-use planning as a matter of law, quali-fying the issuance of leases to be compatible with theland-use plan. Furthermore, sec. 302 of FLPMA states,"the Secretary shall, by regulation or otherwise, takeany action necessary to prevent undue degradation ofthe lands." Although this section also states that thisdoes not amend the 1872 Mining Law, it does implythat future exploration projects must comply with FSregulation 36 CFR 252 and Bureau of Land Manage-ment (BLM) regulation 43 CFR 3809 (proposed Dec.6, 1976). Special regulations apply to the CaliforniaDesert Conservation Area and to the King Range inCalifornia. Furthermore, Sec. 603 of this bill extendsthe 1964 Wilderness Act to apply to BLM lands in addi-tion to FS lands, Fish and Wildlife Service (FWS)lands, and National Park Service (NPS) lands.

Sect. 16 of the Federal Coal Leasing AmendmentsAct states:. . . nothing in this Act or the Mineral Lands Leas-ing Act and the Mineral Leasing Act for acquiredlands which are amended by this Act, shall be con-strued as authorizing wal mining in any area of theNational Park System, the National Wildlife RefugeSystem, the National Wilderness Preservation System,the National System of Trails, and the Wild & ScenicRivers System, including study rivers designatedunder sect. 5(a) of the Wild & Scenic Rivers Act.

LEGAL AUTHORITIES FOR LIMITING THEAVAILABILITY OF FEDERAL LAND FORMINERAL DEVELOPMENT

To understand the legal restriction on the avail-ability of mineral lands, the various types of limitations

in Congress. Congress has exercised its power directlyand indirectly by passing statutes that control the use oflands and by delegating management authority to ad-ministrative agencies. These legal mechanisms were notdeveloped explicitly to control mineral-land develop-ment. The mining and mineral leasing laws are justone type of federal disposition statute, and they varyconsiderably among themselves. A review of these lawsis helpful in understanding why their operation has beenrestricted through withdrawals, classifications, and reser-vations.

The principal statutes authorizing the disposition offederal mineral resources are the Mining Law of 1872,the Mineral Leasing Act of 1920, and the MineralLeasing Act for Acquired Lands of 1947. These andother laws and acts are described in the references.General Withdrawal Act of 1910The basic formal methods of limiting the availabilityof mineral lands were developed during the nineteenthcentury through piecemeal executive and congressionalactions. In 1910, the first general statute governingwithdrawals was enacted.During the early twentieth century, flagrant exploita-tion of various public land resources caused PresidentsRoosevelt and Taft to withdraw extensive areas forspecific purposes. These withdrawals were made underexecutive initiative, without citing any statutory author-ity, and they were so extensive that a major controversydeveloped over the management of public lands.

President Taft was prompted to ask Congress forexpress statutory authority to make such withdrawals,and this led to the passage of the General WithdrawalAct of 1910, commonly known as the Pickett Act, 43USC 141-143. This statute authorizes the presidentto temporarily withdraw any of the public lands fromsettlement, location, sale, or entry, and to reserve themfor water power sites, irrigation, classification, or otherpublic purposes specified in the withdrawal orders.However, the act provided that all lands withdrawn


5/18

186 UNDERGROUND MINING METHODS HANDBOOKBy 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 explicitauthorization of the Pickett Act and, in many instances,were not authorized by any other statute.The secretary of the Interior asked the attorneygeneral whether the president had authority to with-draw 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 Actdid not affect the executive's implied authority to makepermanent withdrawals from all forms of mineral de-velopment if the withdrawal was for public use such asan administrative site. The opinion left open thequestion of whether withdrawals from the mining lawfor a public purpose such as preserving other resourcevalues were permissible. While this question never hasbeen resolved, the so-called "implied executive with-drawal" authority has been used extensively. The legalquestion has been resolved by passage of the FederalLand Policy and Management Act ( th e BLM OrganicAct), PL 94-579,90 Stat 2743.

Whether implied or specifically authorized by sta-tute, the president's authority to withdraw land has beendelegated to the Secretary of the Interior (ExecutiveOrder No. 10355, May 26, 1952, 17 Fed. Reg. 4831).The secretary exercises the authority over withdrawalsfor all of the federal government, but the executiveorder specifically states that the secretary cannot revokeor modify an order affecting lands under the adminis-trative jurisdiction of any other executive departmentwithout the prior approval of the head of the agencyaffected.Classification and Multiple Use Act of 1964

In 1964, Congress undertook a major review of thepublic land laws by establishing the Public Land LawReview Commission (PLLRC) . In the Classification

act expired in 1971, but between 1964 and 1971, BLMclassified 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 theview that retention of classifications under CMU con-tinues indefinitely, even though the act itself has expired.This means that the segregative effect of the classifica-tion continues for areas in which the classificationsegregated the areas from mining or mineral leasing.Thus, classification undertaken pursuant to CMU mayrestrict the availability of mineral lands; the classifica-tions may be found in land agency offices.Administrative Restrictions

Land administrators can restrict the availability ofmineral lands by exercising their managerial discretioneither informally or through official regulations. Anumber of these administrative restrictions, sometimescalled "de facto withdrawals," are described in thefollowing paragraphs.Segregation: As applied in public-land law, segrega-tion means any limitation on the applicability of variouspublic-land disposition statutes to a particular parcel ofland. Any land that is withdrawn, classified, or reservedis considered segregated.

The term is used in a special sense to refer to tem-porary administrative limitations on the applicability ofthe public-land laws while withdrawal, classification, orreservation applications are being processed formally.In such instances, segregation has the same effect asformal withdrawal, classification, or reservation actions.The term indicates that the area has been set asidetemporarily during the administrative process.

The basic idea is that, to promote orderly manage-ment, conflicting applications should be prevented whilethe first action is being processed. However, some ac-tions of this kind have continued for many years withoutaction being taken on the original application. These


6/18

ENVIRONMENTAL CONSIDERATIONSmay initiate revocation or removal of a federal landwithdrawal by filing a letter with BLM. This initiativeshould be in the form of a letter which, when filed byBLM, becomes an indication of interest in the landswithdrawn. It is required that BLM incorporate thisinformation into its planning processes; although itdoes not generate a withdrawal review, it may changethe priorities under which BLM automatically wouldreview withdrawals (Sec. 204 of BLM's Organic Actand 43 CFR 2370). More formal procedures are re-quired in the Angeles and Las Padres National Forests(BLM instruction memorandum 78-233). Furthermore,if it can be shown that a federal land agency excludesa tract of land of 405 kmz (100,000 acres) or largerfrom mineral exploration for more than two yearswithout a report being filed to Congress, these exclusionswould violate Sec. 202 of BLM's Organic Act.Terms and Conditions under the Mining Law andthe Mineral Leasing Act: Both FS and BLM have theauthority to regulate mining and mineral-leasing activi-ties on the lands they administer. In 1974, FS adoptedcomprehensive regulations on mining within the nationalforests, 30 CFR Pt. 252, 1975. Its objective was tocontrol activities under the Mining Law of 1872 so as tominimize adverse environmental impacts on the surfaceresources within national forests. The responsibility formanaging mineral resources remains with the Dept. ofthe Interior. The authority for these regulations iscontained in the FS Organic Act of 1897, 30 Stat 35and 36, 16 USC 00478,551.

The regulations recognize the statutory rights ofminers and prospectors to go upon and use open landsin the public domain within national forests for thepurposes of mineral exploration, development, and pro-duction. They seek to regulate the surface use in areasonable and consistent manner so as to not inhibitor interfere with legitimate and well-planned mineraloperations (FS Manual 02850.3).

Depending upon the severity of the anticipated

things necessary to accomplish its purpose. Conse-quently, the secretary has considerable discretion inestablishing lease terms, but his discretion in setting theterms is limited by the provisions of Sec. 30 of theMineral Leasing Act, 30 USO 0187. Sec. 30 providesthat each lease shall contain provisions to accomplishcertain purposes, including the exercise of reasonablediligence, skill, and care in the operation of the property;provisions for the safety and welfare of the miners; andthe 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 interestsof the United States . . . and for safeguarding of thepublic welfare." The "interests of the United States"and the "public welfare" both are terms that cannot bedefined explicitly. Moreover, they inevitably are goingto be interpreted differently at different times. TheSecretary of the Interior is limited by a requirement ofreasonableness in the imposition of lease terms. Al-though the secretary must be not arbitrary or capricious,the terms he proposes are acceptable as long as there isa reasonable basis for them and they are not in conflictwith other requirements of the statutes. This would betrue even if the lease provisions rendered the operationsunder the lease uneconomic.

In determining the lease terms, the Dept. of theInterior must consider the public welfare under Sec. 30of the Mineral Leasing Act and the requirements ofother statutes, but no particular lease term or form isrequired. The secretary's duty is to protect the interestsof the United States and safeguard the public welfare,and this requirement imposes a balancing effect on hisactions. The secretary must recognize that, under somecircumstances, even mineral development with environ-mental impacts may be the action most consistent withsafeguarding the public welfare and most in the interestof the United States. The availability of mineral landsunder the Mineral Leasing Acts may be controlled


7/18

188 UNDERGROUND MININ( METHODS HANDBOOK. . . withholding an area of Federal land from settle-ment, sale, location, or entry, under some or all ofthe general land laws, for the purpose of limitingactivities under those laws in order to maintain otherpublic values in the area or reserving the area for aparticular public purpose or program . . .This definition encompasses what were traditionallyknown as withdrawals and what were known as reserva-tions. The term does not include land-use managementdecisions that may exclude one or more principal ormajor 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 definitioncould be extended to include the removal of lands fromoperation of the mineral-leasing laws.The principal section of FLPMA affecting formalwithdrawals and reservations is $204. With a few minorexceptions the act repeals all existing withdrawal au-thorities. Congress reserved to itself the authority tocreate, modify, or terminate withdrawals or reservationsfor national parks, national forests, wilderness areas,Indian reservations, certain defense withdrawals, wild

and scenic rivers, nationzl trails, national recreationareas, and national seashores. Congress also reservedthe authority to modify or revoke withdrawals for na-tional monuments and the national wildlife refugesystem.Congress recognized that withdrawal authority isnecessary for proper management of the public landsand other government programs. The FLPMA grantsthe secretary broad withdrawal authority, including theexplicit authority to withdraw land from the operationof the 1872 Mining Law. However, this authority issubject to stringent congressional control, and a numberof statutory requirements must be met. Essentially, theact creates two types of withdrawals known as "stan-dard" and "emergency" withdrawals.

years, and renewal must be in accordance with standardwithdrawal procedures.Except to the extent that emergency withdrawalsare exempted, some procedures are common to all with-drawals. Withdrawals may be initiated on the secretary'sown motion or by application (presumably by anotherfederal agency). In either case, a Federal Registernotice must be published within 30 days and must statethe extent of segregation. Segregation is effective uponpublication and continues for a maximum of two yearsor until the application is either accepted or rejected.New withdrawals may be made only following an oppor-tunity for a public hearing. All withdrawals with spe-cific termination dates must be reviewed prior totermination to determine whether renewal is necessary,and all renewals must meet the requirements of the act.Finally, the secretary may make, modify, or revokewithdrawals on lands administered by non-Interioragencies only with the consent of the affected agencies.The report to be sent to Congress on withdrawals of20 km2 (5000 acres) or more and on emergency with-drawals is quite extensive, as detailed in Sec. 204(c) ( 2 ) ,90 Stat 2743.

In addition to establishing new withdrawal proce-dures, FLPMA addresses the problem of existing andpending withdrawals. First, the act requires all pendingwithdrawals to be processed within 15 years; if not soprocessed, the segregative effect of the application termi-nates. Second, existing withdrawals in the 11 con-tiguous western states must be reviewed within 15 years.Certain withdrawals are excluded from the review:(1) withdrawals of BLM and national-forest lands thatdid not close the land to mining or mineral leasing; (2)withdrawals of BLM and national-forest lands in wilder-ness, primitive, or national recreation areas whether ornot the withdrawals closed the land to mining andmineral leasing; and (3) withdrawals of lands withincertain systems as of Oct. 21, 1976, including Indian


8/18

ENVIRONMENTAL CONSIDERATIONS 189have had a major effect on the availability of minerallands. For BLM lands, FLPMA mandates land-useplanning and the imposition of terms and conditions toprotect the environment. Similar requirements areimposed by the Coal Leasing Amendments Act of 1976and by the Forest Service organic legislation known asthe National Forest Management Act of 1976.General land-use planning is mandated by $202 ofFLPMA. The land-use plan provides the basis for allother land-management decisions. The plans may beimplemented by management decisions. If the decisionsinvolve excluding any principal use for two or moreyears for a tract exceeding 405 km2 (100,000 acres),Congress must be notified and may terminate the deci-sion within 90 days by passage of a concurrent resolu-tion. Principal or major uses are defined in 105(1) asdomestic livestock grazing, fish and wildlife develop-ment and utilization, mineral exploration and produc-tion, rights-of-way, outdoor recreation, and timber pro-duction.

When such a decision is made, there is no require-ment to provide a report justifying the decision asthere would be for certain withdrawals. While the actrequires that the formal withdrawal mechanism be usedto remove areas from the operation of the 1872 MiningLaw [9202(e) ( 3 ) ] , other restrictions on the availabilityof mineral lands may be effected through land-useplanning management decisions to the extent consistentwith either the Mining Law or the Mineral Leasing Actof 1920.By generally reforming public-land law, FLPMAaffects mineral-land availability. BLM lands now mustbe managed on a multiple-use basis and in a way thatprotects the environment. While withdrawals are con-

trolled strictly, they clearly are authorized. Any decisionto lease land now must be based upon land-use planningand, if an area is of "critical environmental concern,"its environmental value must be ~r ot ec te d.

prior to allowing any activity in roadless study areas.This decision reflects FS policy of maintaining wilder-ness qualities in such areas pending final managementdecisions on their use.Sec. 603 of FLPMA requires BLM to review thelands it administers and to make recommendations toCongress for the inclusion of suitable areas into thewilderness system. During the review period, these areasmust be managed so as to not impair their wildernesssuitability. Existing mining and mineral-leasing usesmay continue to the extent that they were being con-ducted on Oct. 21, 1977, but new mining uses may berestricted. The land ultimately included in a wildernessarea is subject to the same conditions already describedfor existing wilderness areas, including the 1984 termi-nation date.Endangered Species Act: Implementation of theEndangered Species Act (ESA) of 1973 may imposefurther restrictions on mineral exploration and develop-ment on federal lands. ESA authorizes the secretaries ofthe Interior and Commerce to identify endangered orthreatened species of all animals and plants. ESA thendirects all federal departments and agencies to takewhatever actions are necessary to assure that their pro-grams do not jeopardize the continued existence ofendangered or threatened species or do not result in thedestruction or modification of the critical habitat of anysuch species.As of 1978, the Dept. of the Interior has proposedthat 1700 species of plants native to the United Statesbe listed officially as endangered species. About 600species of animals have been listed officially as endan-gered, and additional species may be proposed in thefuture. The impacts of such lists vary widely; fo rexample, more than half of the listed plants are inHawaii, but other listed plants have extensive ranges inthe continental United States.

Because it usually takes place in rural areas and


9/18

190 UNDERGROUND MINING METHODS HANDBOOKexpense and delay may result from litigation initiatedby citizens under the citizen-suit clause of ESA.Once a species has been listed as endangered orthreatened, the principal discretionary authority avail-able to the secretary is his authority to select the methodof protection. Methods of protection range from trans-planting species to prohibiting a particular adverse ac-tivity such as mining. If the specific habitat is criticalto the survival of the species and if the operation of amine will destroy or modify that habitat, the secretaryappears to have little or no discretionary authority toweigh the benefits of protecting the species against thebenefits of mineral production. As of 1978, it has notbeen settled whether or not ESA is applicable to fed-erally authorized mining activities initiated prior tolisting particular species.

ESA may restrict mineral development on federallands and may increase the costs of mineral productiondue to the required research and mitigation measures,and the needed studies and litigation may delay orimpede development.Mining in the National Park System: Public Law94-429, approved on Sept. 28, 1976, provides for theregulation of mining activities within certain areas ofnational parks, and it repeals the application of mininglaws to those areas.

Under provisions of the 1872 Mining Law and theindividual organic acts for some parks, exploration,staking claims, and mining had been permitted in sixareas, namely Coronado National Monument. CraterLake National Park, Death Valley National Monument,Glacier Bay National Monument, Mount McKinleyNational Park, and Organ Pipe Cactus National Monu-ment. Mining is taking place in Death Valley NationalMonument and Mount McKinley National Park. Al-though claims exist in other areas, actual mining is notunderway in any of them.

of the park system shall be recorded with the Secretaryof the Interior.7) Within two years, the Advisory Council on His-toric Preservation shall report to Congress with recom-mendations for legislation on the actual or potentialeffects of surface-mining activities on the natural andhistoric landmarks.8) The holder of any patented or unpatented min-ing claim who believes he has suffered loss because ofthe act or its orders or regulations may bring action ina US District Court to recover 'ust compensation.To implement the law, N4 issued regulations tocontrol mining in all units of the park system.Alaska Lands

In Alaska, mineral lands are restricted as a result ofthe effort to transfer federal lands to the State of Alaskaand to the Alaskan natives, as required by the AlaskaStatehood Act, 72 Stat 339, and the Alaskan NativeClaims Settlement Act (AN CSA ), 85 Stat 668. By1984, 418 850 km2 (103,500,000 acres) must be trans-ferred to the state, and 178 100 km2 (44,000,000 acres)must be transferred to the natives. The land remainingunder federal ownership is to be divided as well, ofwhich 323 700 km2 (80,000,000 acres) are proposed forinclusion in the "Four Systems" of national parks, na-tional forests, wildlife refuges, and wild and scenicrivers. Until these land dispositions and allocations aredetermined, almost all federal land in Alaska is with-drawn from mining and mineral-leasing activities. Asthe lands are transferred to state or native ownership ortheir federal status is determined, the land may be madeavailable for mineral development.Table 2 lists the land status in Alaska prior to the1971 passage of ANCSA. With the exception of NPS,Pet 4, the military areas, most of the remaining landswere available for one o r another type of mineral loca-tion, entry, or lease. With the passage of ANCSA and


10/18

ENVIRONMENTAL CONSIDERATIONS

Table 3. Additional Alaska LandsWithdrawn Following ANCSAAgency Land Area, km2 (acres)Four Systems d(2) 335 900 (83,000,000)TAPS Corridor 28 300 (7,000,000)Replacement lands 22(e) 16 187 (4,000,000)Native Withdrawals andSelections 323 700 (80,000,000)'Withdrawn forClassification d(1) 182 100 (45,000,000)Additional state selections 182 100 (45,000,000)Total addltlonal 1 068 400 (264,000,000)Pro-ANCSA (Table 2) 441 100 (109,000,000)Grand total 1 !X9 500 (373,000,000)t'Not counting overlap with pre-ANCSA allocation.tAlaska ha8 a total of 1 517 600+ km 2 (375.000.000+ acres).

3) State lands which are patented or for whichpatents tentatively have been approved are open to thediscretion of the state. In the selection patenting process,there is a period during which BLM gives the state"tentative approval," after which the Statehood Actallows the state to enter into conditional leases.

4) Upon conveyance, native lands become privateand could be leased by the natives. Prior to conveyance,leasing would be possible only on lands selected by thenatives if they approved such leasing and if BLMclassified the land as suitable.

5) The Four Systems will become available onlyafter Congress acts on legislation creating the systemsand only if allowed by Congress in that legislation.

6) Certain classified and other lands are to beopened only after completion of the appropriate classi-fication.The 1872 Mining Law applies to the following:1 ) Parts of national forests, state-patented and ten-tatively approved lands under state law, lands withdrawnfor classification, and a portion of the Trans-Alaskan

acres)]; Denali, an enlargement of Mount McKinleyNational Park [:I5 800 km2 (3,900,000 acres)]; Gatesof the Arctic [33 200 km2 (8,200,000 acres)]; GlacierBay enlargement [2230 km2 (550,000 acres)]; Katmaienlargement [5670 km2 (1,400,000 acres)]; KenaiFjords [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 (5,800,000acres) ]; Wrangell-St. Elias [44 500 km2 ( 11,000,000acres) ]; 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 [4500km2 (1,100,000 acres)]; and Misty Fjords [8900 km2(2,200,000 acres)].HOW FEDERAL-LAND AVAILABILITY FOR MINERA LEXPLORATION AND DEVELOPMENT IS LIMITED

The availability of lands for mineral exploration anddevelopment may be limited through various types ofadministrative decisions. The procedures used in arriv-ing at such decisions depend upon which of the legalauthorities is used. The major federal land-managementagencies are the Forest Service (FS) and the Bureau ofLand Management (BLM) .

BLM policies and procedures are particularly im-portant because BLM is responsible for all formalactions affecting the status of federal lands. Thus, BLMissues mineral leases and mining patents even on na-tional-forest lands, and any withdrawal must be proc-essed by BLM.Formal Withdrawals

Formal withdrawals are initiated by individual agen-cies under the procedures outlined in 43 CFR 2350, asmodified by FLPMA, PL 94-579. Generally, there arethree procedural systems followed in making formalwithdrawals: (1 ) non-Interior agency withdrawals, (2)Interior agency withdrawals, and (3) military with-drawals of more than 20 km2 (5000 acres).


11/18

192 UNDERGROUND MINING METHODS HANDBOOKcreed by direct congressional legislation, all withdrawalsof public lands must be implemented by a public landorder that is signed by the secretary of the Interior orhis delegate.Prior to an In terior agency filing a withdrawal appli-cation, permission must be obtained from an assistantsecretary. Before appro val is given, comm ents regardingthe effects of the proposal are sought from BLM. Thisrequirement is unique to Interior withdrawals, and theapplication, once filed, is handled as though it was anon-Interior withdrawal proposal.Military Withdrawals: Applications for militarywithdrawals are handled in a manner similar to non-Interior requests. An exception occurs when the pro-posal involves mo re than a total of 2 0 km2 (500 0 acre s),and such w ithdrawals m ay be effected only by a n act ofCongress. Up on determining that a proposal for morethan 20 km2 (5000 acres) is acceptable, Interior for-wards a legislative proposal requesting congressionalaction, rather than writing a public land order.Classification: Th e majo r segregative effect of classi-fication occurred under the now-expired CM U, althoughthe segregations already made rem ain in effect. Th eother limitations on land availability are much moreinformal and primarily involve the practices of admin-istrative agencies.The principal mechanisms for effecting the otherlimitations are the land-use planning systems utilized byseveral federal land-m ana gem ent agencies. Basically,these systems inventory all resource values for an area,identify possible land-use conflicts, and attempt to re-solve the conflicts by deve loping an overall plan. T heplan usually specifies the primary, sequential, or multipleuses that may be allowed.

Such a system is dependent upon the decision-makingability of the land man ager. In theory, the process issimilar to zoning in urban areas, except that final land-use plans are more flexible. Th e special features of

lack of detail in some sections of their reports affectingland withdrawals may reflect an agency's general in-attentio n to land-manag ement issues. It must be recog-nized that the primary functions of federal agenciesrange from single-purpose missions to multiple-usemanagement of land resources, and many of the agen-cies' primary missions do not involve mineral develop-ment, Conseq uently, agency responses may not beopposed to mineral development, but they reflect a lackof responsibility in such developm ent. Table 4 lists theinvolvements of various federal agencies in the proce-du re for mineral leasing or development.Dept. of the Air Force: The following paragraphsdescribe the Air Force involvement in policy makingand land review.Mineral-D evelopm ent Policy-Approval for survey-ing, exploration, or development of mineral resourceson Air Force property is granted on an ad hoc basis.AFR 87-3 forbids leasing property controlled by theAir F orce for exploitation of the land for oil , minerals,or phosphates. However, the transfer of administrativejurisdiction over minerals, presumably oil and gas, tothe Dept. of the Interior for leasing may be undertakenif necessary to prevent drainage. AF R 87-3 (3 5) states:The taking or disposal of minerals from A ir Forcelands is not authorized. . . . However, license maybe granted without charge to private interests to ex-plore for minerals on Air Force-acquired land. . . .

Prospecting licenses are issued only if such activityis of "direct benefit to the United States and when itdoes not interfere with the mission of the installation."N o definition of direct benefit is provided . Applicationto explore for minerals is made to HQ USAF/PRER,and the application must detail an "assessment of theenvironmental impact of the exploration," as requiredby AFR 87-3 (41) .

Land Review-Holdings are monitored to protectagainst oil and gas drainage in accord ance with A FR


12/18

ENVIRONMENTAL CONSIDERATIONSTable 4. Federal Agency Land Under Jurisdiction wlth Establlshed Proceduresfor Mlneral Leasing or Development

Oil & Gas Under 1872Total Area, Publlc Domain, Acquired Land, Mineral Drainage Hard-Rock MlningAgency# km2 (acres) km2 (acres) km2 (acres) Leases* Only* Leases* Law*BLM, 1 903 401 1 893 883 9 518 Yes - Yes Yespre-ANCSA (470,340,620) (467,988,730) (2,351,890)FS 757 763 648 280 109 483 Yes - Yes Yes(1 87,247,352) (160,133,401 (27,053,951)Air Force 33 798 28 031 5 776 C C No No(8,351,578) (6,926,719) (1,424,859)Army 44 570 28 610 15 960 U C U No(11,013,386) (7,069,598) (3,943,788)Navy 14 446 9 385 5 061 NO Ye s NO NO(3,569,620) (2,319,034) (1,250,586)COE 31 571 2 958 28 612 c5 Ye s C No(7,801,245) (730,995) (7,070,250)DOE 8 521 5 821 2 700 No No Not No(2,105,588) (1,438,470) (667,118)TVA 3 742 - 3 742 U U U -(924,660) (924,660)N PS 100 440 80 269 20 171 C No No Yest(24,819,244) (19,834,785) (4,984,459)MIS 124 691 108 826 15 865 No5 Ye s No C(30,811,823) (26,891,394) (3,920,429)BIA 20 109 17 016 3 093 C C C No(4,969,051 (4,204,849) (749,201BR 30 484 22 924 7 560 U Ye s U No(7,532,715) (5,664,545) (1,868,169)DOTICG 405 341 63 No No No No(100,022) (84,351 (15,671)

"Yes" means procedu res exist, although a lease application may be denied. "No" means p rocedures do not exist. "C"means proceduresexist only for certain land or that access is permitted on an ad hoc basis. "U" means that the procedu res are uncertain.t Except uranium leases.t Refer to PL 94-429.O Access may be allowed for oil and gas only.# ELM. B ureau of Land Managem ent; FS, Forest Service; COE. Corps of E ngineers; DOE. Dept. of Energy; TVA, Tennessee Valley Authority; NPS,National Park Service; FWS, Fish and W ildlife Service; BIA, Bureau of Indian Affairs, nonreservation; BR, Bureau of Reclamation; DOTICG,Dept. of TransportationICoast Guard.


13/18

194 UNDERGROUND IWlNlNG METHODS HANDBOOKin the Navy Real Estate Procedures Manual 15-1 1.NAVYAC P-73.Land Review-Although the Navy policy is to re-linquish lands determined to be unneeded, there are noapparent procedures existing to implement the policy.

Energy Research and Development Administration:The following paragraphs describe the involvement ofthe Energy Research and Development Administration(ERDA) in policy making and land review. ERD Anow has been reorganized into the Dept. of Energy(DOE), but the following paragraphs will continue toreference ERDA.Mineral Developtnerlt Policy-Allhough there is noERDA-wide policy against mineral activity on acquiredlands, such activity usually is determined on a location-by-location basis to be incompatible with ERDA pro-grams. ERDA has developed no specific policies orprocedures pertaining to mining on lands withdrawnfrom the public domain for use by the agency.Under ERDA Manual Appendix 5301, Part V(b)(1 ), revocable leases, permits, licenses, or similar docu-ments may be issued for use by private parties on realproperty owned or used by ERDA if ERDA determines

that such use will not be inconsistent with its own useof the property at the present time or in the foreseeablefuture. Provisions are made in 10 CFR 60.8 for com-petitive bidding for uranium leases on lands controlledby ERDA. Provisions are made in 10 CFR 61.9 for theissuance of uranium-prospecting permits and miningleases on lands administered by federal agencies that donot have the authority to lease such lands. Under theauthority of the Atomic Energy Act of 1959, 42 USC2011, 2097, ERDA may issue permits and leases foruranium on public lands not otherwise open to locationunder the mining laws. ERD A exercises discretion inthe issuance of all such leases and permits.Land Review-ERDA does not have a generalpolicy on the review of the mineral values of lands it

potential value for uranium production. Conversely,TVA disapproved a requested coal lease 011 TVA landwhere the operator would have supplied power plantsother than those controlled by TVA.Ostensibly, TVA administers its land on a multiple-use basis according to TVA Code V-1. Under theprocedures adopted by the Dept. of the interior andTVA, TVA files applications with Interior, which inturn requests the director of the property and supplydivision of TVA to furnish certain information relevantto possible interferences with current or contemplateduses of the land. TVA consent to the issuance of leasesappears to be mandatory, but, under present TVApolicy, no applications for oil and gas leases have beenapproved recently by TVA. Apparently, TVA hopes todevelop these resources itself at some time in the future.Land Review-TVA Code V-2 contains the follow-ing statement:

TVA reviews lands in its custody to identify the pri-mary purposes for which they are needed, and othercompatible immediate or prospective use or disposi-tion which may best serve in furthering the broadobjectives of the TVA Act. Comments of public andother governmental entities are considered.Forest Service: The following paragraphs describethe involvement of the Forest Service (FS) in policymaking and land review.Mineral-Development Policy-National forest landsin the public domain are open to location and entryunder the Mining Law of 1872, subject to surface-useregulations promulgated on Sept. 1, 1974. These landsalso are subject to the provisions of the Mineral LeasingAct of 1920, but may include FS recommendations forconditional leasing. Recent legislation specifies consent

rather than just recommendation for coal and geo-thermal leasing. Acquired lands are leased in accord-ance with the 1947 Acquired Lands Leasing Act forleasable minerals, and hard-rock minerals are leased in


14/18

ENVIRONMENTAL CONSIDERATIONS 195National Park Service

The responsibility is divided between three agenciesfor the onshore mineral resources that may be developedwithin units of the national park system under theMineral Leasing Act of 1920. These responsibilities aredefined in secretarial order No. 2948, Oct. 6, 1972, andthey are defined further in a Jan. 27, 1974, workingagreement between BLM and USGS. BLM is respon-sible for the adjudication of federal leases through theissuance of the lease. Upon issuance of the lease, USGSresponsibility commences with overall supervision of theoperations. The National Park Service (N PS) , as thesurface-managing agency in areas containing federalleases, has an input as to the conditions or requirementsto be imposed to protect other park resources.

Three units of the national park system are open tomineral leasing, namely Glen Canyon National Recrea-tion Area, Whiskeytown National Recreation Area, andLake Mead National Recreation Area. Leases in theseunits are at the discretion of NPS.Fish and Wildlife Service

All units of the national wildlife refuge system theo-retically are open to mineral leasing. However, underFish and Wildlife service (FWS) policy, no mineraldevelopment is authorized, except that oil and gas leasescan be issued if USGS determines that refuge lands arebeing drained. Leases issued under such circumstancescontain stipulations necessary to assure minimum dam-age to wildlife resources.In Alaskan wildlife areas, FWS and BLM haveentered into an agreement designating lands open to oilor gas leasing. The current agreement opens only theKenai National Moose Range.

Only portions of three units of the national wildliferefuge system currently are under the mining laws.These are a small portion of the Sheldon NationalAntelope Range in Nevada and the Clarence Rhode andCape Newenham Refuges in Alaska. All remaining

In administering the mineral estate on withdrawnlands where such estate is not foreclosed from mineraldevelopment, BLM policy is to permit development withthe withdrawing or holding agency's concurrence.Bureau of Reclamation

The Bureau of Reclamation (BR) directives per-tinent to mineral leasing are contained in parts 215.5.23and 215.5.24 of BR instructions. BLM processes suchapplications on BR lands.

For oil and gas leasing, applications lying within theflowage limits of an existing reservoir or reservoir siteare recommended for rejection unless "slant" or "whip-stock" drilling from adjacent lands is feasible. If im-mediate construction of a dam is not contemplated,drilling may be allowed with the stipulation that thelessee will move to an offsite location and employ slantdrilling when the land is needed by BR.

Other mineral leases may be allowed by BLM at thediscretion of BR, and no guidance exists on this point.

Mineral leases on BR-withdrawn national forestlands are handled by FS for other than oil and gasdevelopment. Clearance is obtained from BR, but nospecific guidance exists as to when such actions shouldbe allowed.

SUMMARYCongress and administrative agencies employ a widevariety of legal mechanisms to limit the availability of

mineral lands. Some formal restrictions like withdrawal,classification, or reservation can limit mineral develop-ment inflexibly. Less formal restrictions like reclama-tion regulations or land-use planning decisions operatemore flexibly, but are less open to public scrutiny. Allof these methods are supported by statute, judicial deci-sion, or congressional acquiescence, and all influence theavailability of federal mineral lands to varying degrees.Table 5 lists the major protected areas of federal landsas of 1978.


15/18

Table 5. Major Protected Areas of Federal Land (1978)-Mlnerals for Which Development Would Not Be AllowedApproximate Public Domain Lands Acquired LandsAcreage ApproximateCategory (million)t Mining Laws Leasing Laws Acreage Leasing Laws Reference'

National parks andmonuments 19.8 All minerals All minerals (million)4.2 All minerals Wheatlev. C. F.~rep& ed or theMilitary reservations Public Land Lawand bases 17 All minerals All minerals 13.6 All minerals CzReview Commission 0BLM may issue oil BLM can issue Vols. 1, 2, 3, 1969 rnand gas leases leases in some See'PL 94-377 3in some cases cases, i.e., Corps Sec 121al 3C,of Engineers .- , 0-Z

Naval petroleum, oil 0shale, coal reserves 0.1 All minerals ZPetroleum reserve No. 4 23.0 Open to oil and gas PL 94-258 (1976) -Zexploration only -Petroleum reserve ZC,buffe r zones 0.1 Oil, gas, helium 43 CFR 3101.1-1 3Alaska native claimssettlement

Native selections 120Four systems 83General Purpose 46ANLSA withdrawal

All minerals All mineralsAll minerals All mineralsOpen to metalli- All mineralsferrous only--someformer (d2) isnot ooen to

-PL 92-203 (197: 1 rl(85Stat 688) I0Sec. 11 0Sec. 17(d)(2) V)

metaliiferrous 0Wilderness Xpreservation system 12.5 All minerals All minera ls Included in PL 88-577 (1964)(Forest service only) (formally closed public domain1984) statistics(leasing)Primitive areas 3.8 Defacto exclusion All minerals Final EIS (P87)(Forest service) of all mineralsRoad ess areas 67.0 Perhaps some Some oi l and gas Roadless and un-(Forest service) exception for on case by case basis developed areassmall operations Forest ServiceOct. 1973Utility corr idor 2.5 Nonmetalliferrous All minerals Public Land Order 5150Alaska only 5.3 Dec. 31, 1971


16/18

Oil shale 8.0Wyoming, Utah,ColoradoNonmetalliferrous All minerals exceptoil and gas, sodium Executive Order 5237Apr. 15, 1930

3.7 Metalliferrous Sodium where it Public Land Order 4522minerals disturbs oil shale Fed. RegisterSept. 24. 1968p. 14349

Fish and wildliferefuges 18.6 All minerals All minerals 3.7 All minerals, leasing Separate executiveKenai Moose Range at discre tion of FWS withdrawal mopen to oil and gas Essentially restricted Orders and pro- Zleases to drainage oil and proposed withdrawals 5Alaska 3.0 Uncerta in gas leases PL 94-377, Sec. 16 ;DClarance Rhode for coal 0Cape Newrenham Executive Order 8592 Z

Nov. 1940 3mZTennessee Valley 0.9 All minerals 43 CFR 3109.3-1Authority TVA policy as drof 1976 0Wilderness (Bureau of 0ZLand Management) 0.2 Defacto all minerals All minerals Included in 90 Stat 2743PL 94-579 Sec. 603 ("Primitive areas left column 0Designated and pending 5.5 Defacto all minerals All minerals Included in mPrimitive areas left column ;DRoad ess study 4.0 Uncerta in Oil and gas case Included inleft column zAreas by case basis 0

allowed Z)Power site withdrawals 1.2 Location permitted Some leasing Included in 43 CFR 3731.1with restriction permitted left column 69 Stat 681in some areasProposed withdrawals 1.0 All minerals unless All minerals unlessotherwise soecified otherwise specified

Included in 43 CFR 2091.2-5left column-- - - -Miscellaneous 5 All minerals All minerals All minerals Bennethum, LeeAgenda land and land exceptions for exceptions for some exceptions Mining Congressdevoted to specific metalliferrous oil and gas Journal, Sept. 1975programs minerals


17/18

Table 5.-ContinuedApproximate Public Domain Lands Acquired LandsAcreage ApproximateCategory (million)t Mining Laws Leasing Laws Acreage Leasing Laws ' Reference*

Miscellaneous 20.9 All minerals Few leasesclosed to mining Public Land Order 1725ever issued Sept. 11, 1958by public Withdrawing frommining but notfrom leasingUtah State officeopinion U-2674 Crejecting oil and gas $lease application m

XIWild and scenic rivers 0.5 PL 90-542 t,WildScenic All minerals All mineralsAll minerals

Included 16 USC 128082 Stat 906Oct. 2. 1968 -Recreational Severe restrictions Perhaps some oil and see%LA 76-182' 0gas in recreationalor proposed areas z-Proposed exclusive Zof Alaska 0.5 Zt,Atomic EnergyCommission 1.4 All minerals All minerals All minerals 42 USC 201 1,2097 zminor exceptions except uranium except uranium 10 CFR60.8 7ISurface land reserved 0for Indian purposes 0V)reservation 0.6 All minerals Some oil and gas if 25 CFR 171complex agreement PL 94-1 14 Iwith B.I.A. approved Oct. 17, 1975 Z

0State selections pending Alaska Native State- mpatents or hood Act 0unperfected All minerals All minerals Alaska Native State- 72 Stat 341 0(avai lable in Alaska (see state hood Act 77 Stat 223state agreement) authorities) 72 Stat 34177 Stat 223Midwest exclusion fromthe mining law 1.6 All minerals in publicdomain of Minnesota.Wisconsin, Michigan,Missouri

30 USC 48:49

- - -Incorporated towns andvillages 7 All minerals if All minerals ? All minerals 43 CFR 3502.1 -5withdrawn by Public 43 CFR 3501.2-1(d)Land Order


18/18

Small tracts.recreation (R) andpublic purposes (PP) 0.5 All minerals All mineralsSome oil and gasleasing might occurin R and PP land

Perhaps minor 43 CFR 2731.2(b)leasing in R and 43 CFR 2741.6(d)PP and

~ - - - - - -National trailsExisting 0.1 All minerals All minerals All minerals 82 Stat 919Proposed 0.3 if incompatible wi th Oct. 2, 1968purpose of a trail 16 USC 1240Lands held undermineral lease (95% oi l

and gas 90 Locatable if mining Any mineral that is not Included in 43 CFR 3740would not disturb compatible with left column 68 Stat 708leased deposit existing mine plan 30 USC 521Lands under unpatentedmining claim ? All minerals except All minerals except 43 CFR 3712salable, i.e., sand leasable minerals if 43 CFR 3741.4and gravel claim was locatedafter Aug. 13,1954and mining iscompatible withlocatorPatented mining claims 3.6 All minerals All minerals exceptleasable mineralswhere patent issuedafter Aug. 13,1954---- - - -Misc. (partial listing)Endangered Species ?ActBald and GoldenEagle Protection ActAnadromous FishConservation Act

Uncertain All minerals 16 USC 1531 (1973)16 USC 66816 USC 757(a)

' 3 CFR 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 1.0acre = 4048.9 ma or 0.004 km2.

chapter 2. protected areas

Documents