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Access Issues and Public Lands Rights-Of-Way

Mark D. Bingham, Public Land Law II (1997)

Public lands constitute 29% of the 2.271 billion acres comprising the United States. Federal agencies are responsible for managing 657 million acres. The Bureau of Land Management (“BLM”) manages 264 million acres (33% in Alaska), the U.S. Forest Service (“USFS”) manages 191 million acres (12% in Alaska), the National Park Service (“NPS”) manages 76 million acres (71% in Alaska) and the Fish and Wildlife Service (“FWS”) manages 91 million acres (84% in Alaska).2 The vast expanse of public lands naturally gives rise to the need for rights-of-way (“ROW”) and access rights across such land.

Rights-of-way and access rights across public lands can be obtained under two primary statutory authorities. Two secondary authorities are also available which involve implied rights of access.3 Section 28 of the Mineral Leasing Act of 1920 (the “MLA”)4 grants authority to the Secretary of the Department of the Interior (“DOI”) to issue ROWs for pipeline purposes in connection with the transportation of oil, natural gas, synthetic liquid or gaseous fuels, or any refined product produced therefrom. Section 29 of the MLA reserves to the Secretary the right to permit easements or ROWs upon, through or in lands leased, occupied, or used under the MLA.