Wilderness Preservation and
Mineral Development on Federal Lands:
A Growing Controversy
Independent Research
S p r i n g 1983
Professor Skillern
by Paul Newell
00533"
Wilderness Preservation and
Mineral Development on Federal Lands:
A Growing Controversy
On April 5» 1982 President Reagaji announced his goals
for mineral development of federal lands in the National
1
Materials and Minerals Program Plan and Report to C o n g r e s s .
Basically the President's goals can be broken dovm into
three p a r t s .
First of all, federal land should be invent-
oried to determine its mineral p o t e n t i a l .
S e c o n d l y , wild-
erness lands should be preserved, but those under study as
p o t e n t i a l wilderness should either be released for developm e n t or designated as wilderness as soon as p o s s i b l e .
Ac-
cordingly, those studies now going on should be a c c e l e r a t e d .
F i n a l l y , the President recommended opening those lands withdrawn from general mining, but which are still open to leas2
ing l a w s .
The President's report is an indication of the current
administration's interest in resolving the growing controv e r s y surrounding wilderness preservation and the developm e n t of the mineral resources located on federal l a n d s .
The purpose of this paper is to examine the recent decisions by the administration, the Congress, and the judiciary concerning wilderness preservation and how those
decisions have affected mineral d e v e l o p m e n t .
A discus-
sion of these recent decisions would not be complete with1
00534"
out first looking at the background of wilderness preserv a t i o n and mineral rights on federal l a n d s .
Hopefully,
the discussion will show that the ideas of wilderness
and mineral development were originally intended to coe x i s t , but they have in turn created a conflict between
those who want to develop the mineral potential on federal
lands and those who v/ant to preserve certain federal lands
as unique v/ilderness a r e a s .
The first wilderness bill was introduced to Congress
in 19561 but it was not until eight years later that a
3
comprehensive wilderness bill was finally p a s s e d .
The
intent of Congress in the Wilderness A c t of 1964 is reflected in the opening section:"... it is hereby declared
to be the policy of the Congress to secure for the American people of present and future generations the benefits
of an enduring resource of wilderness."
Congress defines
wilderness a s , "... an area where the earth and its comm u n i t v of life are untrammeled by m a n , where man himself
5
is a visitor who does not remain."
S p e c i f i c a l l y , Congress
says a wilderness is an area of undeveloped federal land
with at least 50006 acres or large enough to make preservation practicable.
The most important aspect of the land.
is that it has not permanently affected by man and that it
7
remains in its natural condition.
The Act establishes the National Wilderness Preser-
3"
vation System (NWPS) which is to be made up of "wilderness
8
areas" designated by Congress from federally owned l a n d s .
L a n d s within the national forests that were p r e v i o u s l y
classified as "wilderness", "wild", or "canoe" b y the Department of Agriculture or the
Q Forest Service were irnmediately brought into the N W P S .
The Forest Service had clas-
sified 54 areas in the national forests in the above manner
prior to the Wilderness A c t . The total amount of land that
10
first made up the NWPS was Q.l million a c r e s .
The Act also provided that the S e c r e t a r y of Agricult u r e , acting through the Forest Service, review each
area in the national forests that was classified by the
Forest Service as "primitive" on or before September 3.
1064 and report his findings to the President within ten
11
years.
The P r e s i d e n t is th^n to advise Congress whether
.12
these areas should be designated as "wilderness".
The Secretary of Interior was required to review the
national p a r k s , m o n u m e n t s , and every area within the national wildlife refuges and game r a n g e s .
These areas had
to be composed of at least 5000 roadless acres and 13
under
the jurisdiction of the Department of the I n t e r i o r .
The one exception to the review is all lands under the
14
direction
of the Bureau of Land M a n a g e m e n t .
The Secre-
tary of the Interior is required to make his recommendations on the suitability of the reviewed lands as "wilder-
3
15
ness" to the P r e s i d e n t within ten years a f t e r September 3,
1964.
The P r e s i d e n t is then to advise Congress as to
which lands should become "wilderness".
15
O n l y Congress
m a y designate "wilderness" a r e a s .
Once land has been designated by Congress as "wildern e s s " , the a g e n c y administering the area is responsible
16
for maintaining the area in accordance with the A c t .
Those "wilderness" areas are not to have any commercial
enterprises or roads upon them17 and any kind of motorized
transportation is p r o h i b i t e d .
There a r e , however, ex18
ceptions in the Act to mineral or m i n i n g a c t i v i t i e s .
The A c t does allow prospecting to gather geological
information if it is done "... in a m a n n e r compatible
19
with the preservation of the wilderness
enviroment,"
All rights u n d e r the United States m i n i n g laws and the
m i n e r a l leasing laws are to continue to a p20
p l y to these
"wilderness" areas until January 1, 1 9 8 4 .
Reasonable
regulations m a y be imposed "... governing ingress and egress..." which are "consistent with the u s e of the land
for mineral location and 21development and exploration, drill i n g and production,..."
When the m i n e r a l operations
are completed the land is to be restored to its original
22
condition.
As shown in the previous paragraph the Wilderness Act
is supplemental to the laws governing m i n e r a l development
4
00537
on federal l a n d s .
These mining laws allow the private de-
veloper the right to go on to federal lands and produce the
minerals.
Congress enacted the General Mining Law of 1872
to allow any one who finds a valuable m i n e r a l on federal
23
lands the right to produce it.
Furthermore, the devel-
oper gets a free patent to the land after locating the
c l a i m , doing the assessment
work and filling out the pa24
tent a p p l i c a t i o n .
The Act excludes all federal land that
has been withdrawn under other federal law such
as national
25
p a r k s , monuments and military r e s e r v a t i o n s .
Certain min-
erals such as energy
producing deposits may also be exclud"'
2 6
ed from d e v e l o p m e n t .
The Mineral Lands L e a s i n g A c t of 1920 (ML.LA) allows
the Secretary of the Interior to issue leases for the development of coal, phosphate, sodium, potassium, o i l , oil
s h a l e , native asphalt, solid and semi-solid bitumen and
bituminous rocks or gas on federal lands that are n o t in
the National P a r k System
27 or that have not been w i t h d r a w n
from mineral l e a s i n g .
The actual leasing is done
through competitive b i d d i n g for lands where valuable min28
erals are known to e x i s t .
Where there are lands with
u n k n o w n minerals the Secretary may issue a p r o s p e c t i n g
p e r m i t , but only for land not totaling more than 2 560 a c r e s .
If a discovery of a valuable mineral is made, the prospector
is supposedly entitled to a preference right to a lease
4
00538
54
for a fixed t e r m .
That preference r i g h t , h o w e v e r , is
dependent on the basis that commercial quantities have
31
been d i s c o v e r e d .
The Secretary of the Interior m a y al-
ter the criteria used to determine commercial 32
quantities
as long as it is not arbitrary and capricious.
Consid-
erations such as development
costs and enviromental costs
33
are taken into a c c o u n t .
The Secretary's discretion in
a l t e r i n g the requirements before the preference r i g h t is
34
honored may lead to abuse and d e l a y .
In exchange for the
lease the developer pays royalties to the United
States and
35
the United States retains title to the l a n d .
Once under
the lease the lessor must abide by the rules and regulations
prescribed by the Secretary of the 36Interior concerning the
land on which the lease is issued.
The authority of the
S e c r e t a r y is limited after the lease issues by contract
37
law and the limits on administrative a u t h o r i t y .
One other act which the Wilderness A c t was made sup38
p l e m e n t a l to is the Organic Act of 1897•
This A c t pro3^
vides for the use and management of national f o r e s t s .
T h e United States Supreme Court found in United S t a t e s v .
N e w Mexico that the national forests are established for
the purpose of securing favorable conditions of w a t e r flows
o r furnishing a continuous supply of timber 40 Lands more
valuable for m i n i n g are not to be made national forests
41
if that value exceeds timber v a l u e s .
The Forest Service
9
00539
administers 187.7 m i l l i o n acres of land under the A c t , and
42
that land comprises 154 national forests.
The A c t spe-
cifically does not prohibit prospecting and the develop43
m e n t of mineral resources within the national f o r e s t s .
The foregoing discussion shows that the Wilderness
A c t is designed to allow mining in "wilderness" areas and
the mining laws are designed to facilitate private development of the minerals on federal l a n d s .
Proponents of
wilderness preservation however, have opposed m i n e r a l
development of designated "wilderness" areas through
congressional and judicial a c t i o n .
One r e c e n t example of
the growing controversy is the attempt by the S e c r e t a r y of
the Interior to open 44the Bob Marshall Wilderness A r e a to
mineral d e v e l o p m e n t .
The Bob Marshall Wilderness Area is a national forest
that became part45 of the NWPS when the Wilderness A c t was
passed in 1 9 6 4 .
The area is located n e x t to the Glacier
National P a r k in Montana and is a home for a number of endangered species as 46w e l l as an important headwater area for
eight large r i v e r s .
Also located in the area is part of
w h a t is called the Western Overthrust B e l t , a geological
4?
formation that is believed to be rich in e n e r g y .
The
Secretary of the Interior acting under the authority given
him by the MLLA began to process applications for the exploration and development of the Bob M a r s h a l l Wilderness
4
00540
65
A r e a on May 21, 1Q81.
N o r m a l l y when an application for
a lease is m a d e , the Bureau of Land Management refers it
to the Forest Service for review and the Forest Service
49
makes its recommendations back to the B L M .
The Nation-
al Enviromental Policy Act requires that the Forest Service prepare an enviromental
impact statement when it re50
views the a p p l i c a t i o n .
United States Representative Pat Williams
(D-IViont.)
immediately introduced a resolution to the Committee on
Interior and Insular Affairs of the House calling for the
emergency withdrawal of the Bob Marshall Wilderness Area
51
u n d e r § 204(e) of the Federal Land Policy Management A c t .
This little used provision mandates that the Secretary of
the Interior immediately withdraw a specific section of
land if either the Committee on Interior and Insular Affairs of the House or the Committee on E n e r g y and Natural
Resources of the Senate determines that an emergency sit52
uation e x i s t s .
The provision had been used in 1970 to
p r o t e c t water wells in Ventura, California from uranium
minetailings.
Former Secretary of the Interior Andrus
used the provision53 to withdraw 110 million acres of Alaskan land in 1 9 7 8 .
Following a hearing, the Committee adopted the resolution by a vote of 23 to 18 and declared that an emergency situation existed because the values of the area
0541U
might otherwise be lost f o r e v e r .
54
The Secretary was di-
rected to withdraw the Bob Marshall Wilderness A r e a from
all laws p e r t a i n i n g to mineral leasing until January 1,
55
1984.
Ten days later Secretary of the Interior V/att
withdrew the area from all applicable mineral l e a s i n g laws
in Public Land Order N o . 5952, and approximately
1.5 mil56
l i o n acres were protected from d e v e l o p m e n t .
Two days after the order to withdraw was issued the
M o u n t a i n States Legal Foundation (Secretary V/att's former
employer) filed suit in the District Court for Colorado
seeking that § 204(e) be declared unconstitutional u n d e r
either the separation of5? oowers doctrine or bicameralism
and presentment clause.
The plaintiffs also argued that
the Committee's resolution violated the discretionary authority delegated to the Secretary by i 204(e) in that the
S e c r e t a r y m a y set the time limit for w i t h d r a w a l .
Finally,
the plaintiffs pointed out that such an action conflicted
with the Wilderness A c t , was an abuse of discretion,
58 and
did not allow due process to the lease a p p l i c a n t s .
Later the Pacific L e g a l Foundation filed a similar
suit in the District Court for M o n t a n a , and
59 the Colorado
action was transferred and consolidated.
The Department
of Justice refused to defend the suit because it felt the
60
Secretary's action was u n c o n s t i t u t i o n a l .
The court in-
vited participation of counsel from both houses of Congress
9
00542
and allowed the intervention of several enviromental groups
to insure adverseness.
The court in a narrow decision upheld § 2 0 4 ( e ) , but
only on limited g r o u n d s .
The court found that only the
S e c r e t a r y could set the duration for the withdrawal of the
land and that the Secretary's determination is to be based
61
on r e a s o n a b l e n e s s .
The Committee's resolution was de-
clared to be invalid because it removed the land forever,
and therefore was in conflict with the Wilderness Act which
allowed mineral leasing on "wilderness" areas until January 1 , 1 0 8 4 .
Any withdrawal of the land until J a n u a r y 1,
1 0 8 4 would in effect amend the Wilderness A c t and such an
a c t i o n could only be done by both Houses of Congress and
the P r e s i d e n t .
The Secretary of the 62
Interior was ordered
to revoke Public Land Order N o . 5952.
The court's decision was based in p a r t on the recent
63
introduction of legislation to amend the Wilderness A c t .
The legislation proposed to remove the Bob Marshall Wilderness Area permanently from any mineral l e a s i n g .
The
court also relied on the announcement by S e c r e t a r y W a t t
that he would give Congress at least 30 days notice
be64
fore he issued a lease in a "wilderness"
area.
In the fall of 1081 word was leaked that the Departm e n t of the Interior had leased 700 acres of New Mexico's
Capitan Wilderness Area without notifying Congress or
I'Of
00543"
conducting an enviromental impact s t u d y .
65
On November 20,
1^81 the House Interior and Insular Affairs Committee voted
to 1 to ask the administration to ban all oil and gas
leasing on the "wilderness" areas until Congress would have
time to consider changing the laws to allow leasing only
66
for national security reasons.
til June 1, 1 0 8 2 .
The ban was to last un-
Secretary Watt agreed to go a l o n g with
the moratorium and in fact extended the ban until
the end
67
of the current session of the 97th C o n g r e s s .
The deci-
sion by S e c r e t a r y Watt to comply with the ban was taken
into account by the court in the case concerning the Bob
M a r s h a l l Wilderness Area
and also contributed to the court's
68
final d e t e r m i n a t i o n .
The controversy over mineral leasing on "wilderness"
areas is not limited to just those lands under the N W P S .
Those lands that are identified in the Wilderness A c t as
areas to be reviewed for possible designation as "wilderness" are open to mineral leasing as w e l l .
The opposition
to any permanent development on "study" areas has been
just as adamant as the opposition to development on "wilderness" a r e a s .
Early in 1971 the Forest Service was enjoined from
allowing l o g g i n g and road construction in an area contiguous to a previously designated "primitive" a r e a .
In the
case of Parker v . United States the court found that the
00544U
Forest Service has a duty to study the area for its "wilderness" potential and then follow the procedure set down
in the Wilderness Act so that Congress m a y make the final
6Q
decision.
The Forest Service argued that the land v/as
outside the scope of the Wilderness A c t and that a study
had been done on the land and the Forest Service had decided that it was not suitable as a "wilderness"
area.
T h e court defined "primitive" area to include land that
is contiguous to previously designated "primitive"
areas
w h e n the contiguous land has significant wilderness resources.
Once the land is determined to be suitable as
a "study" area the Forest Service must comply with the
Wilderness A c t and m a y not u n i l a t e r a l l y determine the status of the l a n d .
B y 1072 the Forest Service had undertaken an additiona l study, on its own initiative, of national forest lands
outside previously designated "primitive" a r e a s . This
study was called the Roadless Area Review and Evaluation
70
(RARE I ) .
The plan was to identify areas that would be-
come part of the N W P S .
The study covered 56 million acres
and recommended 21.3 million acres of land for the p r o g r a m .
RARE I was not supported by an enviromental impact statement.
When the Forest Service attempted to allow develop-
m e n t on the lands that were released by the study as not
potential "wilderness" areas a federal court issued an in-
00545"
72
junction against the release for not complying with N E P A .
The court's decision effectively deterred development in
73
the study areas released by RARE I .
On June 7, 1077, the Forest Service began RARE II for
the purpose of making a proper study
74 of national forest
lands outside the Wilderness A c t .
This time an exten-
sive enviromental impact statement was prepared and later
released on January 4 , 1 9 7 0 .
The statement covers 38 states
and Puerto Rico comprising over 62 million a c r e s .
Over 15
m i l l i o n acres in 624 areas were recommended for "wilderness" classification, over 36 m i l l i o n acres in 1,981 areas
were recommended for non-wilderness»
and nearly 11 million
75
acres in 314 areas were recommended for further p l a n n i n g .
A lawsuit was filed almost immediately to p r e v e n t the
non-wilderness designations from releasing the land to
development.
On January 8 , 1980, the court decided that
R A R E II violated NEPA and that the designations made by
the study were insufficient to support
any administrative
76
change in the status of the l a n d .
The court wanted site-
specific enviromental impact statements for each area studied.
The case was appealed and recently upheld by the Ninth
77
C i r c u i t Court of A p p e a l s .
The court agreed that the im-
p a c t statement was inadequate in describing the wilderness
characteristics of each area in assessing the value of the
00546
3
area.
The court further noted that the study did not con-
sider the effect of a non-wilderness designation on the
ability to change the designation to "wilderness" at a
later time.
The study did not weigh the benefit of devel78
opment against the loss of w i l d e r n e s s .
The main problem the court has with the study is that
there is no explanation of the methods used to differentiate the lands since they all met the minimum requirements.
The court says that there is not a thorough exploration of
the range of alternatives that would n o r m a l l y be addressed
in an enviromental impact statement of this size and perm i t the agency the ability to make a "reasoned c h o i c e " .
The defendant argued that if RARE II is insufficient to
designate non-wilderness areas then it is also insufficient to designate "wilderness" areas.
The court specific-
a l l y rejected the argument and stated that there is no reason why a "hard look" would cause the Forest Service to
79
reconsider its "wilderness" designations.
The court
concedes that a site-specific analysis of RARE II would
be difficult, but NEPA
contains no exemptions for projects
80
national in s c o p e .
Further complications arose for RARE II recently when
a report from the Comptroller General of the United States
recommended that the m i n81
e r a l data used in RARE II be reexamined and c o r r e c t e d .
The report cites the failure
Ik
00547
of the Forest Service to follow coding instructions on
mineral potentials.
The failure to follow the instruc-
tions resulted in faulty conclusions in RARE II that particular areas had no m i n e r a l potential w h e n in fact the
data on mineral potentials was n o t available or insufficient,
W i t h i n the five states already reviewed the re-
p o r t claims that 35$ of the mineral ratings for lands recommended for "wilderness" were erroneously reported to
82
have zero p o t e n t i a l even though the potential was u n k n o w n .
The report points out that mineral potential was used in
the study as a orimary consideration in the designation
83
of "wilderness" or non-wilderness.
The Comptroller Gen-
eral recommends that those lands where the mineral potential is unknown be put into the further planning category
and that Congress delay
any action on the lands until the
84
data is c o r r e c t e d .
On February 1, 1983, President Reagan suggested that
85
RARE II be s c r a p p e d .
Congress did not appear to be quite
as eager to give up the study and the alternatives
that
were raised included declaring the sufficiency of the
RARE II enviromental impact statement n a t i o n w i d e .
Another
alternative was to have a sufficiency clause added
86 to each
state bill as it made its way through C o n g r e s s .
The
status of RARE II m a y be in doubt, but as of this writing
no direct a c t i o n has taken p l a c e .
15
00548
The controversy over RARE I and RARE II centers around
the "release" issue, or the release of lands determined to be
non-wilderness to development.
The issue has sparked the
introduction of various pieces of legislation either aimed
at accelerating the release of non-wilderness lands or slow8?
ing the release d o w n .
One recent proposal submitted to
Congress by Secretary Watt specified that all development
88
on "wilderness" areas be banned until the year 2 0 0 0 .
Al-
though the legislation accelerates the Wildernesrc Act deadline from J a n u a r y 1, 1Q84, critics detected sections of the
proposal that would reverse "wilderness" area p o l i c i e s .
There is no provision as to the status of the land after
8Q
the year 2 0 0 0 .
S e c o n d l y , the President is authorized to
open up any "wilderness" area to leasing w h e n there is an
u r g e n t national need that outweighs the enviromental r i s k s .
A n y Congressional authority to halt the action is not specified.
Exploration in the withdrawn areas is allowed to
QO"
continue.
A t the heart of the legislation is the require-
m e n t that Congress must act within two years after the President recommends an area be designated as "wilderness" or
the area would be released to non-wilderness m a n a g e m e n t .
S i m i l a r l y , national forest lands recommended as "wilderness" b y RARE II must be designated, as such by 198 5 or
they will be r e l e a s e d .
The point here is that th^ pace
of Congressional designation of "wilderness" areas has been
00549"
a slow state by state p r o c e s s .
Since the RARE II study was
completed only 13 states out of the original 36 states in
the study have been covered by C o n g r e s s .
Eight states were
covered by the Q6th Congress and only five states were covered in the 07th Congress with four of those beine - oassed
02
on December 19 and 2 0 .
Legislation on the opposite r.ide of the "release" issue proposes that all lands within the NWPS be withdrawn
from oil, g a s , oil shale, coal phosphate, potassium, sulfer,
g i l s o n i t e , and geothermal l e a s i n g .
The oroposed legisla-
tion (HR 6542) also states that those lands identified as
p o t e n t i a l "wilderness", wilderness study a r e a s , and the
lands in RARE II identified as further planning areas be
93
temporarily withdrawn from l e a s i n g .
This legislation
was approved b y the House Interior and Insular Affairs
Committee on June 2 4 , 1982 by a vote of 34 to 7.
On
A u g u s t 12, the House oassed the bill by a vote of 340 to
Q
5
58.
A companion bill in the Senate (S 2801) was intro-
duced b y Senator Henry M . Jackson and went to the Senate
96
E n e r g y and Natural Resources Committee for h e a r i n g s .
S e n a t o r Jackson claimed to control of a majority in the
C o m m i t t e e , but Committee C h a i r m a n , Senator James A , McClure,
opposed the measure and subsequently succeeded in blocking
97
the b i l l .
Secretary Watt's proposed legislation (HR 5603) was
17
similarly blocked in the House Interior and Insular Af°8
fairs C o m m i t t e e .
Both sides of the issue appeared to
have enough strength to block the legislation of the opp o s i t i o n , when the conservationists attempted a new tactic
t h a t would circumvent
the Senate Energy and Natural ReQQ
source C o m m i t t e e .
As the Congressional session drew to a close a rider
which banned any spending to process oil and gas leasing
in designated or proposed "wilderness" areas until Septemb e r 30» 1 Q 8 3 , was attached to an Interior Department appropriations b i l l .
Once the bill made it to the Senate floor
the rider was brought
100 into line with Senator Jackson's proposed legislation.
The conference agreement (HR ?35^)
of the House and the Senate included the ban on leasing in
"wilderness" a r e a s , areas recommended as " w i l d e r n e s s " , and
"study" a r e a s . Use of explosives for seismic testing was
101
also b a n n e d .
The bill v/as passed b y the Senate on Dec102
ember 13, 1 9 8 2 , by a vote of 84 to 9.
On December 103
18,
the House adopted the measure by a vote of 282 to 63.
O n December 3 0 , Secretary Watt said that he would not take
advantage of the 90 day
104 window between September 30, 1083,
and January 1, 1984.
Secretary Watt recently removed certain lands under
the management of the BLM from possible consideration as
"wilderness" a r e a s .
These lands consisted of sections
0055f
smaller than 5000 a c r e s , areas where the federal governm e n t only owns
the surface estate, and those areas con-
tiguous to "wilderness" or "wilderness" candidate a r e a s .
The total amount of land removed from study is over 805,
105
000 a c r e s .
These lands are only optional study areas
under the Federal Land Policy and M a n a g e m e n t Act (FLPMA)
which will be discussed l a t e r .
The reaction was immediate and on J a n u a r y 13»
1983,
suit was filed in a United States District Court in Sacra106
m e n t o , California to reinstate the l a n d .
The plaintiffs
included a United States Representative from California,
the Wilderness S o c i e t y , the Sierra C l u b , the Enviromental
Defense Fund, and the National Resources Defense C o u n c i l .
The outcome of this case will depend on how the court will
interpret the mandates of the Federal Land Policy and Management Act concerning the study of BLM lands as potential
"wilderness".
As stated earlier the Wilderness A c t did not apply to
those lands b e i n g administered b y the B L M .
The situation
was changed in 1976 when the Federal Land Policy and Man107
agement Act (FLPMA) was passed b y C o n g r e s s .
The Act
is intended to give the Secretary of the Interior the first
comprehensive statutory statement of the purposes, goals,
and authority for the use and m a n a g e m e n t of 108
about 470 million acres of land administered by the B L M .
00552"
The FLPMA requires a review of all roadless areas of
5000 acres or more and roadless islands of public lands that
have "wilderness" characteristics as described in the Wild109
erness A c t .
This review must be completed within 15
years of the passage of FLPMA and the Secretary of the Interior is required to make his recommendations to the President from time to time within that time limit.
Before
the Secretary recommends any area for "wilderness"
desig-
n a t i o n , he is required to make a geological
survey of the
110
area to determine the mineral v a l u e s .
A f t e r the receipt
of each reoort from the S e c r e t a r y , the President has two
111
years to make his report to the C o n g r e s s .
During the time that the land is b e i n g reviewed the
S e c r e t a r y is to manage the land in accordance with F L P M A .
T h e standard of management that is set down in the A c t has
caused confusion as to the degree of development that is
allowed on the review l a n d s .
The standard states that the
lands are to be managed:
...in a manner so as not to impair the suitability of such areas for preservation as w i l d e r n e s s ,
subject, however, to the continuation of existing
m i n i n g and grazing uses and mineral leasing in the
manner and degree in which the same was being conducted on October 21, 1076: P r o v i d e d , That in managing the public lands the S e c r e t a r y shall b y regulation or otherwise take any action required to
prevent unnecessary or undue degradation of the
lands and their resources or to afford enviromental p r o t e c t i o n . 112
The confusion centers around the two standards that are
005SS
used in the statute, that is the standard of "impairment"
and the standard of "unnecessary and u n d u e " .
The Solicitor of the Department of the Interior attempted to interpret this section in a legal opinion in
113
S e p t e m b e r of 1 9 7 8 .
The opinion interpreted the "impair-
ment" standard as the more stringent of the two standards
and stated that the "impairment" standard applied only to
those actual uses of the land that occurred after FLPMA
114
became l a w .
The less stringent standard of "unnecessary
and undue" applied to only those actual uses that were going on before the Act was p a s s e d .
The opinion made a clear
distinction between an actual ongoing use and the right to
use.
That is, if a developer had a pre-existing right to
use the l a n d , but the right was not exercised until after
FLPMA. became law then the developer would be held to the
stricter standard of "impairment".
If the developer had
exercised the right through actual use before FLPMA
115 the
standard of "unnecessary and undue" would a p p l y .
This statute has been challenged in the courts recently and at this point the Solicitor's opinion has been upheld.
In Utah v . Andrus a private developer was attempt-
ing to construct an access road across a "study" area to
11<
reach a federal mining claim adjacent to the "study" area.
The BLM prohibited the construction and the d e v e l o p e r , who
had obtained the right of access before F L P M A , brought
00554"
suit.
The court sustained the BLM's action on the theory
that the plaintiff had not exercised the right of access
before FLPMA and was to be held to the "impairment"
ard.
stand-
The court elaborated that an e x i s t i n g use prior to
FLPMA would be allowed to continue u n d e r the "unnecessary
117
and undue" s t a n d a r d .
The court determined that the
construction of the road would p e r m a n e n t l y "impair" the
118
"study" a r e a .
The next case that focused on the statute was Rocky
119
Mountain Oil and Gas Association v . A n d r u s .
The court
here agreed that the statute contained two standards, but
interpreted the language in the statute to read that only
the "unnecessary and undue" standard a p p l i e d .
The court
based this interpretation on the language in the statute
which stated:"...subject, however, to the continuation of
existing m i n i n g and grazing uses and m i n e r a l leasing in
the manner and degree in which
120 the same was being conducted on October 21, 1 0 7 6 . . .
The court found that "mineral leasing" was separate from the language that proceded
it and was modified by the phrase "manner and degree".
The court reasoned that mineral leasing could be carried
on under the "unnecessary and undue" standard if the leasing was conducted in the same "manner and degree" as before
121
FLPMA.
Mineral leasing activity would include actual
on lease development u n d e r the "unnecessary and undue"
0055J)2
standard.
The court's conclusion is that the "impairment"
standard would effectively eliminate any lease developm e n t after 1976 and if Congress had intended such a result
122
it would have been stated more c l e a r l y .
On November 30, 1982, the Tenth C i r c u i t Court of Appeals reversed RMOGA v . Andrus
citing Utah v . Andrus and
1 23
the Solicitor's o p i n i o n .
The court first states that
the statute in question is ambiguous and that it can be
properly interpreted by looking at the Congressional intent and the legislative history of the s t a t u t e .
The
court finds that the wording of the statute would support
the lower court's interpretation, but the
interpretation
is contrary to the intent of Congress and the statute's
124
legislative h i s t o r y .
The court points to the singular
v e r b "was" that follows "mineral l e a s i n g in the manner and
degree" in the s t a t u t e .
to "mineral l e a s i n g " .
The verb appears to only refer
The intent of Congress was that the
"manner and degree" language modify not only "mineral leasing", but "mining and grazing uses" as w e l l .
The court
determines that the only possible explanation for the
ambiguity is that the use of "was" is in fact a grammatical error.
The plural form of the v e r b , "were", should
have been u s e d .
The court concludes that "mining and
grazing uses and mineral leasing" should be treated identically.
0O55623
The court cites the Solicitor's opinion in reaffirming
the distinction between actual use and right to use in int e r p r e t i n g the extent of the "manner and degree"
language.
This language would only be relevant if a distinction is
made between the actual uses existing on the lease prior
to FLPMA and the uses that begin after F L P M A .
The court
states that the purpose of the statute "is to maintain the
status quo" as of the date of FLPMA so that lands will remain suitable for "wilderness" designation until the Secretary makes the recommendation and Congress makes the deci-
12 5
si o n .
The r e s u l t of this last case has left the Solicitor's
opinion as the proper interpretation of the management
standard applied to all BLM "study" lands.
The contest
does not appear to be over, however, as there are critics
who maintain that FLPMA does provide protection to leaseholders of pre-FLPMA leases from losing their ri-°tit to
develop the l e a s e .
126
Forecasters are already predicting
127
more litigation in this a r e a .
The statutory language of both FLPMA and the Wilderness Act flatly state that mineral development is to be
allowed on the lands covered by the a c t s .
The
interpreta-
tion of that statutory language has lead to an opposite
result.
The mineral potential on the lands covered by
FLPMA and the Wilderness Act is not often a known quantity
2k
00SS7
and developers may not be interested in going through the
procedural difficulties in first getting a lease and then
actually exercising their right to use under the lease,,
Even though the current administration is encouraging
development of mineral resources on federal lands the actual development has been slowed by the courts a:nd C o n g r e s s .
As of 1982 only 50 leases have been granted in "wilderness"
areas and the 891 lease applications pending have been
128
virtually frozen by C o n g r e s s .
The strict standards im-
posed by the courts on lands recommended for "wilderness"
designation and in "study" areas has also limited mineral
development.
The private developer has to be aware of the
p o s s i b i l i t y of litigation and delay if he attempts to develop a lease within these protected a r e a s .
The need for
mineral resources is only going to increase the controversy
over wilderness preservation and mineral development on
federal l a n d s .
The resolution of these contests will con-
tinue on a case by case basis in the courts until Congress
acts to b r i n g the ideas of preservation and development into h a r m o n y .
Whether the two ideas can work together with-
out being mutually exclusive is unanswered.
?5
00558
Footnotes
1 . T u n d e r m a n n , Preservation v s . Mineral Development of
Federal Lands-Much A d o , but Little to S h o w . 13 ELR
10020 (1903J:
2 . Id.
3 . G . Coggins and C . Wilkinson, Federal Public Land and
Resource Law,773 (1081).
16 U . S . C . § 1131(a) (1976).
5. I d . § 1 1 3 1 ( c ) .
6 . Id.
7- I d .
8 . Ld. § 1131 (a) .
o. Id. 0 1 1 3 2 .
1 0 . C o v i n s and Wilkinson, supra, at 774.
1 1 . 16 U . S . C . § 1132(b) ( 1 0 7 6 ) .
12. Id.
13. Id. 8 1132(c).
1 4 . Coggins and Wilkinson, supra, at 77k,
15. Id.
16.
17.
18.
1Q.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
U . S . C . g 1133(b) (1.076).
Id- S 1 1 3 3 ( c ) .
Id. § 1 1 3 3 ( d ) ( 2 ) .
Id.
Id. § 1 1 3 3 ( d ) ( 3 ) .
Id.
Id.
30 U . S . C . §8 22-54 ( 1 9 7 6 ) .
Coggins and Wilkinson, supra, at 3 3 5 .
30 U . S . C . § 22 (1976)
30 U . S . C . §§ 181-287 (1076).
Id.
Coggins and W i l k i n s o n , s u p r a , at 1 3 2 .
Id.
Id.
J o h n s , Federal Preference Right Coal Leasesx How Much
"Right" Really Exists?, 12 N a t . R e s . L a w . 389 (1979).
I d . at 3 0 2 ;
I d . at 4 1 6 .
Id.
Boesche v . U d a l l , 373 U . S . 4 7 2 , 478 (1963)•
Martin, The Interrelationships of the Mineral Lands
Leasing A c t , the Wilderness A c t , and the Endangered
Species Acti A Conflict in Search of a Resolution, 12
Envt'l L . 3 6 3 , 370 (1982).
Id.
TZ U . S . C . I 475 (1976)
Id.
00^59
4 0 . 438 U . S . 696 (1978).
4 1 . 16 U . S . C . § 4 7 5 (1976).
4 2 . California v . Bergland, 483 F . S u p p . 4 6 5 , 471 (I98O).
43.
44.
45.
46.
47.
48.
49.
50.
51.
52.
53.
54.
55.
56.
57.
58.
16 U . S . C . § 4 7 8
(1976).
12 ELR 10023 (1982).
Id.
Id.
I d . at 1 0 0 2 4 .
F e d . R e g . 27735 (1981).
12 ELR 10024 (1982).
Id.
39 C o n g , Q . 912 (1981).
12 ELR 20198 (1982).
39 C o n g . Q . 912 (1981).
Pacific L e g a l Foundation v . V/att, 12 ELR 20297. 20199
(1982).
Id.
12 ELR 20199 (1982).
12 ELR 10024 (1982).
12 ELR 20197 (1982).
59. Id.
60. Id.
6 1 . I d . at 2 0 2 0 5 .
62. Id. at 20207.
63.
64.
65.
66.
67.
68.
69.
70.
71.
72.
73.
74.
75.
76.
77.
Id. at 20205.
Id.
39 C o n g , Q . 2318 (1981).
Id.
39 C o n g . Q . 2513 (1981).
12 ELR 20197 (1982).
448 F.2d 703 (10th C i r . 1971),cert, denied,405 U . S . 989
(1972).
S h o r t , Wilderness Policies and Mineral Potential on
Public L a n d s , 26 Rocky M t n . M i n . L . I n s t . 39, 44 (1980).
483 F . S u p p . 4 6 5 (1980).
W y o m i n g Outdoor Co-ordinating Council v . Butz, 484 F.2d
1244 (1973).
S h o r t , supra, at 4 5 .
Id.
S u m m a r y , Final Enviromental Statement-Roadless Area
Review and Evaluation" 2 ( 1 9 7 9 ) .
483 F . S u p p . 4 6 5 .
California v . Block, 13 ELR 20092 (9th C i r . 1982).
78. W.
79. Id. at 20102.
8 0 . Id", a t
20097.
8 1 . Report by the Comptroller General of the United StatesMineral Data In the Forest Service's Roadless Area Review and Evaluation (RARE II) is M i s l e a d i n g and Should
be Corrected, (1982).
00560"
82.
83.
84.
85.
86.
87.
88.
89.
90.
91.
92.
93.
94.
05.
06.
07.
98.
09.
100.
101.
102.
103.
104.
105.
106.
I d . at 4 .
I d . at 7 .
I d . at 1 1 .
S T C o n g . Q . 335 (1083).
Id.
C o n g . Q . 462 (1982).
12 ELR 10026 (1.082).
40 C o n g . Q . 462 (1982).
12 E l r 10026 (1.082).
Id.
C o n g . Q . 3135 (1982).
H . R . 6 5 4 2 , 07th C o n g . , 2d S e s s . (1982).
40 C o n g . Q . 1582 (1982).
40 C o n g . Q . 1082 (1982).
40 C o n g . Q . 26oo (1082).
Id.
40 C o n g . Q . 3077 (1982).
40 C o n g . Q . 2355 (1982).
Id.
<+0 C o n g . Q . 3077 (1.°82).
I d . a t 30.78.
4 o C o n g . Q . 3133 (1082).
4l C o n g . Q . 11 (1.083).
Id.
4 T C o n g . Q . 112 (1083).
107. 43 u . s . c . §s 1701-1782 (1076).
1 0 8 . W . a t S 1701.
109.
110.
111.
112.
113.
114.
115.
116.
117.
Id.
Id.
Id.
Id.
On.
Id.
Id.
Id'
at § 1 7 8 2 ( a ) .
at @ 1 7 8 2 ( b ) .
at § 1 7 8 2 ( c ) .
S o l i c . Dep't Int., 86 Interior D e c . 91 (1978).
P . lSo uo p6 p . 005 (1970).
»
a t
118. Id. at I007.
119.
120.
121.
122.
123.
500 P . S u p p . 1338 (1080).
43 U . S . C . § 1.782(c) ( I 0 7 6 ) .
500 P . S u p p . at n 4 4 .
Id.
Rocky Mountain Oil and Gas Association v . W a t t , 13
ELR 20038 (10th C i r . 1 9 8 2 ) .
1 2 4 . I d . at 2 0 0 4 3 .
125. Id.
1 2 6 . C o m m e n t , Tenth Circuit Approves Interior's Wilderness
P r o t e c t i o n Policies in Energy-Rich Rocky Mountain Region, 13 ELR 10004 (1983).
128! Jfo'cong. Q . 462
(1982).
00561"