Access For Mineral Exploration and Development After FLPMA

It has long been recognized that the owner of an unpatented mining claim has a right of access to that claim across federal lands. That right flowed from both express and implied grants in the mining laws. However, the Federal Land Policy and Management Act of 1976 (“FLPMA”) repealed the express right-of-way grant on which miners had relied. It is now also recognized that the federal government has the right to regulate, to some degree, the manner in which operations are conducted on unpatented mining claims and the means of access over federal lands to such claims. Within the past decade both the Bureau of Land Management (“BLM”) and the Forest Service have adopted “surface use” regulations which, among other things, affect access to mining claims. A modern mining operation needs access rights not only to haul men, ore and equipment, but also for electric power, communication facilities, pipelines, water supply systems and other uses. This paper examines the basis of the miner's right of access, the authority for and extent of regulation of access by the BLM and the Forest Service, and the evolving law defining the limits of permissible federal1 regulation.

II. The Miner's Rights of Access

The origin and evolution of miners' rights of access to mining claims located under the general mining laws has been well documented by others,2 and will not be analyzed he