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Access and Right-Of-Way: Overcoming the Difficulty in the Details

Mark D. Bingham, Land and Permitting II (1996)

The exploration for and development of minerals is simply impossible without rights of access. Exploration requires access for geophysical equipment, drilling rigs, excavation, production and transportation equipment. In order to get this equipment onto a leasehold, roads are required. Once exploration activities prove successful, development will require rights-of-way (“ROWs”) for power lines, pipelines, communication equipment, facilities, product transportation systems and other equipment.

Similar to the concept of royalty to the crown, modern concepts of access and ROW for mineral development derive in part from the English. The English crown, much like our federal government, was faced with the problem of capitalizing on the benefit of the royalty it placed on minerals if those minerals could not be transported across lands. To resolve this problem, English courts decided that the royal mining privilege included the “liberty to dig and carry away the ores thereof, and with other such incidents thereto as are necessary to be used for getting of the ore.”2 For over a century, mineral operators have been required to obtain permits and authorizations before commencing construction and operation activities within ROWs on federal lands in the United States.3

In another case very similar to modern access problems, the Court of King's Bench dealt with surface own