Access to Mineral Rights in the United States: Consideration of the “Not in My Basement” Problem

The watchword in the United States to resolve rights of access to minerals through a separately owned surface is becoming “accommodation.” This presentation will examine rights of access to non-hydrocarbon minerals with particular emphasis on circumstances where mineral development must consider surface rights. Essentially, there are two parts of the basic issue in the United States. First: the mineral estate has been historically considered “dominant,” usually to the detriment of the owner of the surface, and second, there is no universal method to resolve the nature and extent of the rights between surface and mineral owners. This paper will summarize the various situations in which the legal title to mineral deposits in the United States diverges from surface rights. These circumstances present a good forum for analysis of the issue because mineral title in the United States can include public ownership, private ownership, and ownership by Indian tribes or by the individual states. In each of these instances examples can be found where the surface and mineral rights are either in separate ownership or are managed by separate public agencies. Here, although the legal origins diverge considerably, the path to resolution is becoming more consistent.

I. Public Ownership

[7B-2]

Acquisition of rights to minerals on the public lands of the United States