SPE 87084

Rights Of Access And Permitting For Coalbed Methane Operations

Phillip Wm. Lear, J.D. / Lear & Lear L.L.P.
Copyright 2003, Society of Petroleum Engineers Inc.
This paper was prepared for presentation at the SPE Applied Technology Workshop, Coal Bed
Gas Resources of Utah held in Salt Lake City, Utah, U.S.A., 2425 October 2003.
This paper was selected for presentation by an SPE Program Committee following review of
information contained in a proposal submitted by the author(s). Contents of the paper, as
presented, have not been reviewed by the Society of Petroleum Engineers and are subject to
correction by the author(s). The material, as presented, does not necessarily reflect any
position of the Society of Petroleum Engineers, its officers, or members. Papers presented at
SPE meetings are subject to publication review by Editorial Committees of the Society of
Petroleum Engineers. Electronic reproduction, distribution, or storage of any part of this paper
for commercial purposes without the written consent of the Society of Petroleum Engineers is
prohibited. Permission to reproduce in print is restricted to a proposal of not more than 300
words; illustrations may not be copied. The proposal must contain conspicuous
acknowledgment of where and by whom the paper was presented. Write Librarian, SPE, P.O.
Box 833836, Richardson, TX 75083-3836, U.S.A., fax 01-972-952-9435.

Proposal. This paper provides a summary of access and

access-related legal issues for operating personnel covering
access to and on oil and gas leases on federal public, Indian,
state, and private lands. The author admits to a decidedly
western orientation and perspective, as the western experience
includes the private and state lands issues from the east and
mid-continent, while adding by superimposition the federal
public lands and Indian experience. These issues will cover
access on the leasehold surface access of split-estate
leaseholds, access over adjacent lands to the leasehold, access
through mineral estates to subjacent minerals, and access
during simultaneous mineral operations.

Rights of Access and Permitting for

Coalbed Methane Operations1
Introduction.
Access for mineral operations was relatively manageable from
the operators perspective for the first 180 or so years of
United States mining history. With regard to federal public
lands, mining claims carried with them a host of statutory and
common law access rights; and Congress, though providing no
implied rights of access over adjacent lands, did provide rightof-way leasing acts that have been liberally implemented.
Courts traditionally sided with mineral extraction operators,
particularly in the West where mining became a major
industry2 and state statutes often accorded mining (and oil and
1

Phillip Wm. Lear is the senior partner in Lear & Lear L.L.P., a Salt Lake
City-based legal boutique focusing on domestic mineral, public lands,
railroad, environmental, and international mining law.
See Leonard J. Lewis, Access Problems and Remedies for Oil and Gas
Operators, 26 Rocky MT. MIN. L. FDN. 811, 812-13 (1980) (citing
Highland Boy Gold Mining Co. v. Strickley, 78 P. 296, 298 (Utah 1904),

gas operations) a semi-private character providing eminent

domain rights for private purposes.3
However, for the past 20 years, access has been
subject to intense scrutiny by legislatures, courts, and
administrative agencies. On private lands, surface owners in
split-estate ownership patterns have rallied to challenge
dominant mineral estate theories that heretofore provided
access on the leasehold when surface use and access
agreements could not be negotiated.4 Indeed, many states
have enacted dormant mineral statutes, terminating the severed
mineral estates on private lands if mineral extraction
operations have not commenced after a period of years.5
Indian tribes challenge access over adjacent lands and even the
leaseholds themselves, seeking through-put assessments in
lieu of one-time rodage charges, because the tribe does not
benefit from any of the mineral operations.6 The Bureau of
Land Management (BLM) has tightened its requirements
for private lands underlain by federal minerals.7 Conservation
and environmental groups have challenged the issuance of
leases and rights-of-way on federal public lands on grounds
that the federal lands managers did not comply with preissuance environmental assessments and land use plans.8
Some state oil and gas regulatory agencies consider surface
owners to be part of their constituencies and may provide for
surface damage agreements.9
affd 200 U.S. 517 (1906); and Creede & Cripple Creek Mining & Milling
Co. v. Uintah Tunnel Mining & Transport. Co., 196 U.S. 337 (1905)).
3

See, e.g., Utah Code Ann. 78-34-1 through 78-34-21; Wyo. Stat. Ann.
1-26-814 to 1-26-815.

See John F. Welborn, New Rights of Surface Owners: Changes in the

Dominent/Servient Relationship between the Mineral and Surface Estates,
40 ROCKY MT. MIN. L. FDN. 22-1 (1994).

See, e.g., W. Va. Code 55-12A-1 to 55-12A-10 (1994). The states and
citations are catalogued in Welborn, supra note 4, at note 135.

See, e.g., Del Rio Drilling Programs, Inc. v. United States, 35 Fed. Cl. 186
1996).

U. S. Dept. of Interior, Instruction Memorandum No. 2003-131, Permitting

Oil and Gas on Split-estate Land and Guidance for Onshore Oil and Gas
Order No. 1 (April 2, 2003) [hereinafter IM No. 2003-131].

See, e.g., SUWA v. United States, Civil No. 03-CV-221 (Utah 2003)
(challenging federal leases); SUWA v. United States, Civil No. 2:01-CV616J (Utah 2000) (seismic operations in southeastern Utah); and see
generally Sierra club v. Babbitt, 65 F.3d 1502 (1995).

See, e.g., Utah Admin. Code R649-3-18 (2003).

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SPE 87084

This paper provides a summary of access and accessrelated legal issues for operating personnel covering both
access to and on oil and gas leases on federal public, Indian,
state, and private lands. The author admits to a decidedly
western orientation and perspective, as the western experience
includes the private and state lands issues from the east and
mid-continent, while adding by superimposition the federal
public lands and Indian experience. These issues will cover
access on the leasehold surface access of split-estate
leaseholds, access over adjacent lands to the leasehold, access
through mineral estates to subjacent minerals, and access
during simultaneous mineral operations. Numerous authors
have addressed this topic and the renderings are available in
the legal literature.10
Federal Lands.
Federal lands comprise approximately 700 million acres in 21
states in the Lower 48 and Alaska.11 Federal lands subject to
mineral leasing are management by several agencies mostly
within the United State Department if the Interior. These
agencies include the BLM (262 million acres), National Park
Service (84 million acres), United States Fish and Wildlife
Service (95 million acres), and the Minerals Management
Service for the Outer Continental Shelf (40 million acres).12
The Department of Agriculture through its Forest Service
controls 191 million surface acres,13 much of it underlain by
federal minerals managed by the BLM. This paper focuses on
onshore federal lands and more particularly on federal public
lands.

10

11

12

13

Representative articles include: Daniel A. Jensen, How Do I Get There?

Access to and Across Mining Claims and Mineral Leases, 45 ROCKY MT.
MIN. L. INST. 20-1 (1999); Mark D. Bingham, Access Issues and Public
Lands Rights-of-Way, PUBLIC LAND LAW II 7-1 (Rocky Mt. Min. L. Fdn.
1997); Rebecca W. Thomson, The Long and Winding Road' or the
Diminishing Right of Access to Federal Lands for Mineral Development,
MIN. DEV. & LAND USE 10-1 (Rocky Mt. Min. L. Fdn. 1995); Kendor P.
Jones, Restrictions on Access and Surface/Subsurface Trespass Involving
Exploration and Production Technologies, 40 ROCKY MT. MIN. L. INST.
20-1 (1994); Steven P. Quarles & Thomas R. Lundquist, Access Across and
Trespass on Federal Lands, PUBLIC LAND LAW 11-1 (Rocky Mt. Min. L.
Fdn. 1992); Clyde O. Martz, Rebecca Love, & Charles L. Kaiser, Access to
Mineral Interests by Right, Permit, Condemnation or Purchase, 28 ROCKY
MT. MIN. L. INST. 1075, 1088-94 (1982); James A. Holtkamp, Access for
Mineral Operations, MINERAL RESOURCES PERMITTING 12-1 (Rocky Mt.
Min. L. Fdn. 1981); Lewis supra note 2; Mary Jane C. Due, Access Over
Public Lands, 17 ROCKY MT. MIN. L. INST. 171 (1971); T. S. Ary &
Patrick J. Morgan, Problems of Access to Public Domain, State and Fee
Lands From Shotguns to the Courthouse, 15 ROCKY MT. MIN. L. INST.
481 (1969); Theodore H. Frison, Acquisition of Access Rights and Rights of
Way on Fee, Public Domain, and Indian Lands, 10 ROCKY MT. MIN. L.
INST. 217 (1964).
See Dept. of Interior, Bureau of Land Management, Public Lands Statistics
Table
1-3
(2001)
http://www.blm.gov./natacq/pls01/pls1-3_01.pdf
[hereinafter Public Lands Stats].
See United States Dept. of Interior http://www.doi.gov/facts.html.
See Bureau of Land Management, http://www.blm.gov/nph/ facts/acres.htm.

Federal Public Lands. Statutes broadly define federal public

lands as lands administered by the BLM.14 The BLM defines
its jurisdiction over federal public lands more narrowly as
those lands that never left the ownership of the United States,
lands that come to the United States in exchange for public
lands, and lands that have reverted to the United States by
operation of public land statutes and refers to them as public
domain lands.15 The distinction in terminology is important,
because not all lands owned by the United States are federal
lands, and not all lands managed by the BLM are federal
domain lands. Examples of other lands are lands acquired by
other federal agencies by purchase or foreclosure and lands
acquired from private parties by the BLM.
Of that total the BLM manages 643.2 million of those
acres as combined federal surface and underlying mineral
estates, and 57.2 million as federal minerals underlying private
surface estates.
Surface Access and Use on the Leasehold. Coalbed
methane is leased under the provisions of the Mineral Leasing
Act. (MLA).16 The MLA is silent with regard to the use
and control of the surface estate by the lessee. However,
departmental leasing regulations clearly annunciate that the
lessee may use so much of the surface of the leased lands as
necessary to explore for, drill for, mine, extract, remove and
dispose of all the leased resources . . . .17 Implicit is the right
to construct access roads; pipelines, telephone, and telegraph
lines; and power lines. Operating regulations confirm the
requirement to depict and report the construction of roads and
other surface improvements and facilities when apply for
permits.18
Coalbed methane is deemed by federal law to be part
of the oil and gas estate.19 Coalbed methane is leased under the
standard United States Lease for Oil & Gas [Form 3100-11
(October 1992)].20 The lease form expressly authorizes
construction and maintenance of necessary improvements on
14

See Federal Land Policy & Management Act 103 (Definitions), codified at
43 U.S.C.A. 1702(e) (West 1986).

15

See 43 C.F.R. 3000.0-5 (2002).

16

43 U.S.C.A. 181287 (West 1986 & Supp. 2003). Accepted short titles
for the federal leasing statute are: General Leasing Act, the Mineral Lands
Leasing Act, the Mineral Lands Leasing Act of 1920, the Mineral Leasing
Act, the Mineral Leasing Act of 1920, and the Oil Lands Leasing Act. See
Historical note to 1 of the Act (codified at 43 U.S.C.A. 181).

17

See 43 C.F.R. 3101.1-2 (2002); BLM Manual 2801.32C.

18

43 C.F.R. 3162.3-1 (2002).

19

See, e.g., Amoco Prod. Co. v. Southern Ute Indian Tribe, 526 U.S. 865
(1999).

20

See Bureau of Land Management, U.S. Dept. of the Interior, Offer to Lease
and Lease for Oil and Gas, Form 3100-11 (June 1988). See also, 1 LAW OF
FEDERAL OIL & GAS LEASES 9.04[1] & 2 22.01[1] (1992); Solicitors
Op. M-36921, Rights of Way Requirements for Gathering Lines and Other
Production Facilities Located within Oil and Gas Leaseholds, 87 I.D. 291
(1980).

{ACCESS~1.1}

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SPE 87084

the lands leased.21 The combination of the federal leasing

regulations and the lease terms confirms rights of access on
the leasehold.
The BLM may issue the lease subject to special
stipulations governing access and occupancy, among other
issues.22 Lease stipulations may provide for no surface
occupancy during all periods of the lease, no occupancy
during certain seasons or wildlife rutting and strutting periods,
and no occupancy if surface facilities would impair scenic
values or would tend to interfere with the concurrent
development of other minerals. Stipulations typically derive
from local BLM field office Resource Management Plans and
their attendant environmental studies.
Communitization23 and unitization24 of leases
effectively extend the surface rights and access of one
leasehold to all leaseholds, such that no separate access is
required for crossing adjacent lands committed to the unit to
explore for, produce, and develop a specific leasehold.25
Access Across Adjacent Lands to the Leasehold
Rights-of-Way. Express rights of access are available under
the Federal Land Policy and Management Act (FLPMA)26
and the MLA.27
Express access is acquired through
application and payment of fees. The MLA provides no
inherent or implied rights of access over adjacent lands to the
leasehold.28 Indeed, cases stress that the lessor/operator is on
notice that the BLM does not guarantee access across
adjoining lands to federal leaseholds.29

natural gas, synthetic fuels, and refined fuels); telephone and

telegraph, power lines, microwave, and other communications
sites; storage sites; and many other uses.30 A right-of-way is
an easement for passage or access upon or across the lands of
another, which is required for the construction of roads or
pipelines across anothers property.31 BLM regulations
implement the statute.32 FLPMA rights-of-way can be for
days, months, a term of years, or perpetuity.33 The criterion for
the duration term is what is reasonable under the
circumstances. Factors to be considered are the public
purpose served, cost and useful life of the facility, and time
limits imposed by licenses and permits required to be secured
from other federal agencies.34 Rights-of-way issued for
periods in excess of 20 years are subject to periodic reviews.35
Grants can be renewable for additional terms or nonrenewable,
as determined by the language of the grant itself.36 FLPMA
rights-of-way are not exclusive, meaning the BLM may grant
other rights-of-way to third-party holders within the same
right-of-way corridors.37 However, the holder may use the
right-of-way only for the purposes granted.38 The BLM has
promulgated detailed regulations for applying for and
administering the right-of-way grants.39 Most rights-of-way
across adjacent lands to the leasehold are FLPMA rights-ofway.

21

See U.S. Dept. of Interior, Bureau of Land Management, Offer to Lease and
Lease for Oil and Gas Form 3100-11 (Oct. 1992).

Oil and gas pipelinescrude, synthetic, and refined

fuels transportare issued and regulated pursuant to the
MLA.40 Normally, MLA rights-of-way are applied for and
issued locally, either at the BLM state office or field office
level.41 However, should the right-of-way cross lands of the
United States managed by more than one agency, then
applications, grants, and renewals are the province of the
secretary.42 MLA rights-of-way shall not exceed a fifty-foot
width, exclusive of the pipeline, unless the secretary makes a
special determination approving a greater width.43 Durational
terms for MLA rights of way, like FLPMA rights-of-way, are

22

Id. See also 43 C.F.R. 3101.1-2.

30

See 43 U.S.C.A. 1761.

23

Communitization is the pooling of federal leases for common development

of a pool established by a state oil and gas conservation commission. See
Phillip Wm. Lear, Conservation Principles and Federal Onshore Pooling
& Unitization: An Overview FEDERAL ONSHORE OIL AND GAS POOLING &
UNITIZATION 1-11 (Rocky Mt. Min. L Fdn. 1990) [Lear I]. See also 43
C.F.R. Subpart 3105 (2002). A pool is defined as an underground
reservoir or common source of supply containing an accumulation of oil or
gas. See, e.g., Utah Code Ann. 40-6-2(18) (1998). A drilling unit is
that geographical area of the pool drained by one well. See, e.g., Utah
Code Ann. 40-6-6(3) (1998).

31

See, BLACKS LAW DICTIONARY 1063 (abridged. 7th ed. 2000).

32

See 43 C.F.R. 2800.0-1 (2003).

33

See 43 C.F.R. 2801.1-1(h).

34

See 43 C.F.R. 2801,1-1(h)(1) through (3).

35

See 43 C.F.R. 2801.1-1(i).

36

See 43 C.F.R. 2801.1(j).

FLPMA authorizes the issuance of rights-of-way for

roads, trails, and highways; pipelines (other than for water, oil,

24

Unitization is the bringing together of federal (and other) leases for common
development of an entire reservoir. See Lear I, supra note 23 at 11-12.

37

See 43 C.F.R. 2801.1(f)

25

See Bruce M. Kramer & Patrick H. Martin, THE LAW OF POOLING AND
UNITIZATION 20.06[1] (2002).

38

See 43 C.F.R. 2801.1(b)

26

See 43 U.S.C.A. 1701-82 (2000).

39

See 43 C.F.R. Subparts 2801 through 2808.

27

See 30 U.S.C.A. 181, et seq.

40

See 43 C.F.R. 2800.0-7(c).

28

See Petroleum Assn of Wyoming, 133 IBLA 337, 343 note 4 (1995);
Southern Utah Wilderness Alliance, 127 IBLA 331, 364-71 (1993).

41

See 30 U.S.C.A 185(c) (West 1986)

42

29

See 30 U.S.C.A 185(c)(2).

See Coquina Oil Corp. v. Harry Kourlis Ranch, 643 P.2d 519, 523 (Colo.
1982).

43

See 30 U.S.C.A 185(d).

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SPE 87084

to be reasonable terms in light of all circumstances.44

However, MLA rights-of-way are not to exceed 30 years.45
As with FLPMA rights-of-way, MLA rights-of-way are nonexclusive.46 Use of the right-of-way is limited to the holders
contractors, employees, agents or servants during construction,
operation, maintenance, and termination of the pipeline.47
Renewals are available so long as commercial production is
being achieved.48 The BLM may suspend or terminate any
right-of-way upon abandonment, or for failure to comply with
the right-of-way statute and implementing regulation, subject
to notice and hearing;49 and the BLM may temporarily
suspend use of a right-of-way to protect health, safety, and
welfare pending the hearings.50 The BLM has provided
detailed regulations for applying for and administering the
rights-of-way grants.51 No assignments of interests in the
right-of-way are valid until approved by the BLM.52 The
rights-of-way corridors must be restored within a reasonable
time following termination of the grant or abandonment of the
right-of-way.53
It is important to realize that no formal grants of
rights-of-way are needed if there are existing federal, state, or
county roads.54
Federal Split-Estates and Onshore Order No. 1.
Split-estate ownership poses a unique set of access problems
for the operator. Split-estates denote those situations when
one party owns the surface and the other owns the minerals.55
In the federal context, the surface owner may be a private
party or a state.56
This ownership pattern is to be
distinguished from that circumstance in which by reservation
or withdrawal another agency manages the surface, such as the
Forest Service, National Fish and Wildlife Service, or National
Park Service.57
Split-estates in the public lands context arise under
44

See 30 U.S.C.A 185(n).

45

See 30 U.S.C.A 185(n).

46

See 30 U.S.C.A 185(p); 43 C.F.R. 2801.1(f).

47

See 43 C.F.R. 2881.1-1(a).

48

See 30 U.S.C.A 185(n).

49

See 30 U.S.C.A 185(o)(1).

50

See 43 C.F.R. 2883.5(1); 30 U.S.C.A. 185(o)(2).

51

See 43 C.F.R. Subparts 2880 through 2883).

52

See 43 C.F.R. 2881.1-1(g).

53

See 43 C.F.R. 2883.8.

54

See Jensen, supra note 10, 20.02[1][b][2].

55

See 53A. Am. Jur. 2D Mines and Minerals 176 (2003).

56

See IM 2003-131, supra note 7 at 1.

57

See infra, discussion at Section 11.02.

early Twentieth Century public land law for surface entry and
settlement on the public lands.
Historically, Congress
provided inexpensive public lands to the settler during the
countrys Manifest Destiny period in the form of homestead
entry patents that conveyed both surface and minerals estates
to the entryman. Indeed, the land was thought of as one estate
only. However, in 1909 and 190 Congress heralded a radical
change in its nearly 130-year policy of land settlement under a
one-unified estate policy when it passed the Coal Lands
Acts.58 In these acts congress reserved to the United States all
coal from lands patented to settlers. The Coal Lands Acts are
not relevant to this discussion of access, since they reserved
coal exclusively, other than signal a departure from historical
antecedents. The departure aligns with the recognition that
strategic minerals should remain in public ownership.
Congress continued its new policy with the
Agricultural Entry Act of 191459 and Stockraising Homestead
Acts of 191460 and 1916.61 Those acts granted the surface
estate to farmers and stockman, reserving coal and other
minerals to the United States, together with the right to occupy
so much of the surface as is reasonably necessary to mine and
remove the minerals. Oil and gas is deemed to be included
among the other minerals.
The new congressional policy incorporated into these
acts was one of dominance of the mineral estate over the
surface estate. The Supreme Court confirmed the mineral
dominance jurisprudence when lessees/operators sought
access over private lands to exercise their rights on the surface
of the leasehold.62 This has been, and currently remains, the
basic law in federal split-estate ownership.63
The standard is, and always has been, that the
lessee/operator is to be accorded reasonable surface access
incident to his mineral operations.64 Damages have been
limited to actual damages to agricultural improvements and

58

See Coal Lands Act of 1909, 35 Stat. 844, 30 U.S.C.A. 81; Coal Lands
Act of 1910, 36 Stat. 583, 30 U.S.C.A. 83-85.

59

Act of July 17, 1914, see Ch. 142 1, 38 Stat. 509; Act of June 16, 1955,
Ch. 145 2, 69 Stat. 138, as amended 30 U.S.C.A. 121-124 (1958).

60

See Stockraising Homestead Act, Ch. 9, 39 Stat. 862, as amended, 43

U.S.C.A. 299.

61

See Act of Dec. 29, 1916, Ch. 9, 1, 39 Stat. 862, as amended 43 U.S.C.A.
291-301 (1958).

62

Kinney-Coastal Oil Co. v. Kieffer, 277 U.S. 488, 504 (1928).

63

See generally Kinney-Coastal, 277 U.S. 488 (1928); Mountain Fuel Supply
Co. v. Smith, 471 F.2d 594 (10th Cir. 1973); Gilbertz v. U. S., 808 F.2d
1374 (10th Cir. 1987); Del Rio Drilling Programs, Inc. v. United States, 35
Fed. Cl. 186 (1996); Occidental Geothermal, Inc. v. Simmons, 543 F. Supp.
870 (N.D. Cal. 1982); Bourdieu v. Seaboard Oil Corp. of Delaware, 100
P.2d 528 (Cal. App. 1940); Reno Livestock Corp. v. Sun Oil Co., 638 P.2d
147 (Wyo. 1981); Holbrook v. Continental Oil Co., 278 P.2d 798 (Wyo.
1955).

64

See 43 C.F.R. 3814.1(c) (2003).

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SPE 87084

crops.65 With its Onshore Order No. 1,66 the BLM issues
permits to drill for federal split-estate oil and gas from
locations on the surface estate patented under the Stockraising
Homestead Act of 1914 in the absence of surface owner
consent or waiver, only if the lessor/operater can demonstrate
that it made a good-faith attempt to negotiate surface access
with the land owner without success.67 In that event, the BLM
will approve an Application for Permit to Drill (APD), and
authorize surface occupancy only after the lessor/operator has
posted a bond against reasonable and foreseeable damages for
loss of crops and tangible surface improvements. In the oil
patch, this process is often referred to as bonding on. The
split-estate regulations are found in the BLMs mining
regulations, explainable because coal mining and hard rock
mining dominated mineral extraction operations at the time the
Stockraising Homestead Act was passed. They apply equally
to oil and gas operations.68
Procedures under Onshore Order No. 1 are
straightforward. No lessee is authorized to commence
construction (dirt-moving) operations for public land minerals
without a permit to drill.69 Permits to drill may be obtained by
filing either a sundry notice or an APD.70 These filings trigger
the running of a 30-day public notice period.71 Permits to drill
and notices of staking are not technically complete, and will
not issue, until after and onsite inspection and approval of the
proposed drilling plan and location of surface facilities, and, in
a split-estate situation, after certifying the existence of a
surface damage agreement or unsuccessful attempts to achieve
a surface damage agreement after good faith efforts.72
Certification assumes three forms: (1) a surface owner
agreement for access to enter the leased lands, (2) a waiver
from the surface owner for access to the leasehold, or (3) an
agreement regarding compensation to the surface owner for
damages to loss of crops and tangible improvements.73 Crops
include feed for domestic animals such as grasses, hay, and
corn, but not plants unrelated to stock raising. Tangible
improvements include barns, fences, ponds, or other water
works, but do not include those unrelated to stock raising.74
The surface owner will be invited to the onsite inspection, but
his absence will not postpone the onsite or impede the
approval process. Onshore Order No. 1 has the force and
effect of regulatory law since it issued pursuant to the notice,
65

See supra, cases cited at note 63.

Onshore Order No. 1 (48 Fed. Reg. 48916 (Oct. 21, 1983); 48 Fed. Reg.
56226 (Dec. 20, 1983). [hereinafter Onshore Order]

67

See IM 2003-131, supra note 7 at 3.

68

Id.

70

Onshore Order No. 1 at II.

71

Id. at II.B.1.
Id. at II.B.2 See also 43 C.F.R. 3162.3-1(d).

72

See IM 2003-131, supra note. 7 at 1; Onshore Order at VII.

73

Id. at 2.

74

Id. Kinney-Coastal, 277 U.S. 488 (1927).

Recently, the BLM has reaffirmed its commitment to

involve the surface owner in initial operational decisions for
well and access road location and for minimizing surface
damages.77 The primary purpose of the reaffirmation is to
identify that the bond required in lieu of the surface use and
damage agreement or a waiver of damages is not the 3104
drilling and plugging bond, but rather an SRHA 3114 bond.78
Since at least 1990, the BLM has considered the 3104 drilling
and plugging bond to adequately cover the surface damage
addressed in Onshore Order No. 1. However, in the face of a
recent Rocky Mountain Region Solicitors Opinion,79 the
BLM has standardized it bonding procedures to provide that a
3114 bond only will qualify as the in lieu compensation under
the Onshore Order. The 3114 bond must be attached to the
APD upon submittal or for the APD to be deemed technically
complete.80 No permit will issue without the bond.
Onshore Order No. 1 procedures work and have been
invoked by the author on numerous occasions to achieve
access on the surface of the leasehold. Onshore Order No. 1
does not apply to access on adjacent lands for access to the
leasehold. An open question is whether or not it applies to
National Fish & Wildlife Service lands acquired from private
parties in a Stockraising Homestead Act chain of title.
Special Category Lands. The MLA does not apply
to units of the National Parks System, Indian reservations,
incorporated cities and towns, naval petroleum and oil shale
reserves, Arctic National Wildlife Refuge, National
Wilderness Preservation System, wilderness study areas
designated by Congress or the BLM (except where expressly
authorized by Congress), and lands having passed from and
then reacquired by the United States other than by exchange
(acquired lands).81 With exception of Indian lands, these
special category lands appear not to be subject to federal
Onshore Order No. 1. However, this proposition does not
appear to have been tested in the courts. Many of these lands
are deemed to be, technically speaking, public lands, but they
are excepted from public lands for leasing purposes, unless
expressly authorized by Congress.
MLA.

66

69

hearing, and public comment procedures of the federal

Administrative Procedures Act.75 Onshore Order No. 1 is
expressly incorporated into departmental regulations.76

Forest Service lands are subject to leasing under the

Surface access over Forest Service lands to the

75

See 5 U.S.C.A. 553 (West 1986).

76

See 43 C.F.R. 3164.1.

77

See IM 2003-131, supra note 7 at 4.

78

See id. at 4.

79

See Dept. of Interior, Office of the Solicitor, Rocky Mountain Region

Memorandum to Michael Madrid (March 2, 2000).

80

See id. at 2.

81

See 43 C.F.R. 3100.0-3 (2002).

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SPE 87084

leasehold will be governed by the FLPMA and MLA

provisions as discussed previously. However, the Secretary of
Agriculture regulates the surface of National Forest Service
lands, and no APD will be approved without his approval of a
plan of operations.82 More to the point, the BLM may not
issue a lease on minerals underlying Forest Service lands if the
Secretary of Agriculture objects to lease issuance.83 The
Secretary of Agriculture may prescribe rules for surface
disturbance and approval of the plan of operations.84
When The National Wildlife Service is the surface
management agency in split-estate situations involving
minerals managed by the BLM, oil and gas leases may issue,
but only with consent of the Fish and Wildlife Service and the
Secretary as to time, place, and manner of operations.85
Acquired lands in which another federal agency has surface
management primacy, may be leased under the Acquired
Lands Leasing Act.
Access across these special category lands is
governed by separate regulations for those lands.
Indian Lands.
Surface Access and Use on the Leasehold. Indian lands also
pose special problems.86 Indian tribal and allotted lands leases
issued pursuant to the Indian leasing acts provide for surface
use and occupancy. Technically, no separate rights-of-way are
needed to conduct operations on the surface of the leasehold.
However, rights-of-way must be obtained from the Bureau of
Indian Affairs (BIA) to cross adjacent Indian lands to reach
the lease. With most tribes, rights-of-way applications are
submitted to the BIA, but must be approved by the presiding
tribal body by resolution. Nowadays, tribes may insist upon
global surface and access agreements under which individual
rights-of-way are submitted. Procedures are covered in
statutes and departmental regulations.87
Access Across Adjacent Lands to the LeaseholdRights-ofWay. With exception of a few tribes, oil and gas leasing on
Indian lands proceeds under the auspices of the Tribal Lands
Leasing Act of 193888 or the Allotted Lands Leasing Act of

82

See 30 U.S.C.A. 226(g).

83

See 30 U.S.C.A. 226(h).

84

See 30 U.S.C.A. 226(o).

85

1909.89 Neither act provides for the issuance of rights-of-way

across adjacent lands.
However, the Secretary, the BIA, may grant rights-ofway across Indian lands for all purposes,90 as long as the Indian
landowners have given consent prior to the grant of the right-ofway.91 With regard to allotted lands, the Secretary may issue a
right-of-way without the consent of the Indian landowner: (1) if
the land is owned by more than one person, and the owners or
owner of a majority of the interests therein consent to the grant;
(2) if the whereabouts of the owner of the land or an interest
therein are unknown; (3) if the heir or devisees of a deceased
owner of the land or an interest therein have not been determined,
and the Secretary of the Interior finds that the grant will cause no
substantial injury to the land or any owner thereof; or (4) if the
owners of interests in the land are so numerous that the Secretary
finds it would be impracticable to obtain their consent, and also
finds that the grant will cause no substantial injury to the land or
any owner thereof.92 If a right-of-way is issued without proper
consent of the Indian landowner, federal statutes and regulations
have clearly been violated. At least one case has stated, in dicta,
that, when the local BIA officials were legally bound to follow the
statutory and regulation-based procedures in the course of
executing Indian rights-of-way, any conveyance in violation of
those procedures amounted to an unauthorized, void and wrongful
act.93
Typically, industry purchases rights-of-way on a onetime rodage basis. Increasingly, however, tribes are insisting upon
annual payments and progressive tribes often seek throughput on
volumes of oil and gas transported across their lands.
Indian Split-Estates. Serious access problems for industry
arise primarily in the context of split-estate lands. For
purposes of this discussion, Indian split-estates comprehend
Indian surface and federal minerals. The controlling law is
expressed in Del Rio Drilling Program, Inc. v. United States.94
Lessees under federal oil and gas leases brought an action
89

See 25 U.S.C.A. 396.

90

See 25 U.S.C.A. 323. For a good discussion in the context of oil and gas
pipelines, see generally Michael E. Webster, Native American Jurisdiction
and Permitting, Oil and Natural Gas Pipelines: Wellhead to End User, 1212 (ROCKY MT. MIN. L. FDN. 1995).

91

See 25 U.S.C.A. 324. This provision is commonly referred to as the

Tribal Consent Act. See Del Rio Drilling Programs, Inc. v. United States,
35 Fed. Cl. 186, 191 (1996).

92

See 25 U.S.C.A. 324.

See 43 C.F.R. 3101.5-1.

86

See generally, Thomas H. Shipps, Rights-of-Way Across Indian Lands,

RIGHTS-OF-WAY 5-1 (Rocky Mt. Min. L. Fdn. 1998); Daniel H. Israel,
Acquiring Rights of Access and Surface Uses on Indian Lands, Rights of
Access and Surface Use 6-1 (Rocky Mt. Min. L. Fdn. 1984).

87

See COLBY L. Branch & Kemp J. Wilson, Crossing the 49th Parallel: Land
Issues for Oil and Gas Operations in the United States and Canada, 46
ROCKY MT. MIN. L. INST. 23-1 (2000).

88

See 25 U.S.C.A 3969396f (1994).

93

See Coast Indian Community v. U.S., 500 F.2d 639, 650 (Ct. Cl., 1977)
(concerning claim brought against U.S. by members of unincorporated
association for damages for uncompensated taking of property and breach
of fiduciary duty owed by BIA due to failure of BIA to get consent from
Indian landowners prior to granting right-of-way).

94

35 Fed. Cl. 186 (1996) (hereinafter Del Rio I), withdrawn Del-Rio Drilling
Programs, Inc. v. U. S., 37 Fed. Cl . 157 (1997) (Del Rio II), withdrawal
reversed Del-Rio Drilling Programs, Inc. v. U.S., 146 F.3d 1358 (Fed. Cir.
1998) (Del Rio III), reinstated Del-Rio Drilling Programs, Inc. v. U.S., 46
Fed. Cl. 525 (2000) (Del Rio IV).

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SPE 87084

against the United States and the BLM for breach of contract
and an unconstitutional taking. In 1948 Congress severed the
surface from the mineral estates and gave the surface estate to
the Ute Indian Tribe of the Uintah and Ouray Reservation in
eastern Utah.95 The area so segregated is known at the Hill
Creek Extension. The federal lessees argued that they had an
implied common law right of access under the congressional
act that severed the surface estate from the minerals. The
court agreed, ruling that the lessees were entitled to exercise
the rights of the mineral owner to use that portion of the
surface estate reasonably necessary to extract the minerals.96
In point of law, the congressional severance of the estates
created an implied easement of necessity in the mineral
owner.97 The court reasoned that the lease provisions entitling
the lessee to exploit the minerals is worthless without the
attendant rights of surface access to do so.98 The question
remained as to whether or not the Tribal Consent Act under
which Indian rights-of-way are issued trumped the easement
by necessity. The court held that it did not, because the rightof-way is conjoined with the mineral estate, and the Indian
tribe has no authority or jurisdiction to grant or refuse to grant
a right-of-way to the mineral lessee for the right to use the
surface estate.99 It is interesting to note that the Court of
Claims decision turned on the dominance of the mineral estate
over the surface estate. It observed that it is a long standing
rule that grants by the federal government are to be governed
by the law of the state in which the lands are situated, absent
any express law to the contrary.100 Since Utah law embraces
the mineral dominance doctrine, the Utah law governed the
transfer.101 Therefore, it would appear that if the law of the
state had adopted the mineral dominance theory, the result of
Del Rio Drilling Programs, Inc. would obtain.102
Having determined that the mineral estate is
dominant and that Indian owners in federal split-estate
situations need not consent to the reasonable mineral owner
access, it is left to determine what procedures govern the
lessees use of the Indian surface estate. In point of law,
federal Onshore Order No. 1 likewise applies to operations on
Indian surface by lessees of federal public lands minerals.103
Again, the lessee is obliged to seek consent to surface use and
a determination of actual damages or a waiver of damages
before certifying that no consent or waiver can be obtained.

Only then can the lessee bond on.104

Some companies have historically made it a practice
to pay Indian surface owners for rights of access even though
no payments other than actual damages were necessary under
law, simply to maintain good relations with the Indians. These
practices have given rise to the expectation that the surface
owner is entitled to access fees. These practices have returned
to roost.105
State Lands.
A survey of laws applicable to state lands would provide as
many permutations as there are states. State lease provisions
govern surface access and use on the leaseholds, and state
statutes and land agency rules and regulations would govern
rights-of-way across adjacent lands to the leaseholds.106 Splitestates would be governed, in most cases, by common law. It
is important to note, however, that some state oil and gas
conservation commissions have regulations requiring good
faith surface access negotiations before an ADP will issue.107
Private Lands.
Surface Access and Use on the Leasehold. Access and use
of the surface estate is always covered in private lands leases.
Often the authorizing language appears in the lease habendum
clause. That clause provides that as part of the right to explore
for, mine, and remove oil, gas and associated hydrocarbons,
the lessee has a right to construct and maintain surface
facilities on the lands incident to oil and gas operations. The
legal literature is replete with lease terms and conditions for
surface use.108
Surface Access and Use on Lands Adjacent to the
Leasehold. Access over adjacent lands to the leasehold exist
or may be obtained under one or more of several legal theories
or procedures. Traditional theories include access by (a) grant
or agreement, (b) prescriptive easement, ways of necessity, (c)
implied easement, (d) private eminent domain for public
purposes, and (e) R.S. 2477 roads.
Grants of Easement. Rights-of-way or easement
may be obtained by express grant. Location, width, purpose,
rights of construction and maintenance, duration, and
exclusivity are important elements of any right-of-way. The
advantage of express grants is that they can be tailored to meet
the operators needs.

95

See Act of March 11, 1948, Pub. L. No. 80-440, 62 Stat. 72.

96

See Del Rio I, 35 Fed. Cl. 186, 194 (1996).

97

See Id.

98

See Id. at 195.

99

See Id. at 194.

104

See discussion supra at notes 6680.

100

See Id. at 193 (citing United States v. Oklahoma Gas Co., 318 U.S. 206,
209-10 (1943).

105

See Welborn, supra note 4.

106

101

See 2 LAW OF Fed. OIL & GAS LEASES 22.05 (2000).

See Smith v. Linmar Energy Corp., 790 P.2d 1222, 1224 (Utah 1990);
Flying Diamond v. Rust, 551 P.2d 509, 511 (1976).

107

See, e.g., UTAH ADMIN. CODE. R649-3-18 (2003).

102

See discussion of private land law infra, at notes 108120.

103

See Onshore Order at VII; see also, 43 C.F.R. 3161.1 (2002).

108

See generally, Harold R. William & Charles J. Meyers, 3 LAW OF OIL &
GAS LEASES 603604.13 (2002) for discussions of the habendum
clause and surface use.

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SPE 87084

Prescriptive Easement.
Prescriptive easements
derive from the common law. They are prescriptive because
they result from open, notorious, adverse, and continuous use
for a term of years in derogation of the landowners title.109
Open means that the use is known or could be known to the
public and the owner of the lands used. Notorious means that
it is in derogation of the rights of the landowner. Adverse
means that the user knows the lands are not his. Continuous
means that there are no interruptions in use during the
prescriptive period. In this, prescriptive easements are similar
to rights obtained by adverse possession.110 The period of
adversity is generally long, from 10 to 20 years in western
states. Permissive use of the landowner, actual or implied,
will generally defeat vesting of an easement by prescription.111
Way of Necessity. A second common law easement
is a way of necessity. It stems from public policy that one
would never intend for conveyed lands or reserved lands to be
landlockedfor there to be no access to the rights conveyed
or reserved. The elements of a way of necessity are (1) unity
of ownership followed by severance; (2) at the time of
severance, the servitude was apparent, obvious, and visible;
(3) the easement is reasonably necessary to enjoy the
dominant estate; and (4) the easement must be continuous and
self-acting as distinguished from one used only from time to
time when the occasion arises.112
Implied Easements. A third common law right is
known as an implied easement.113 For an easement to be
implied it must result from a conveyance and must be
reasonably necessary to the enjoyment of the dominant estate.
The classic example of an implied easement is an apartment
house or condominium. A grant of the apartment unit carries
with it an implied easement to use the stairs, common
hallways, or elevator. The inference of intent to create the
easement is drawn from the surrounding circumstances under
which the conveyance is made, rather than from the language
of the conveyance. The easement must be apparent, obvious,
and visible.
A way of necessity is to be distinguished from an
implied easement in that the land conveyed and retained is
surrounded and has no access road to the outside world.
Eminent Domain. Most all western states provide
rights of condemnation by private parties for public purposes.
Condemnation is a fundamental attribute of a sovereign to
109

See, e.g., Homer v. Smith, 866 P.2d 622, 626-27 (Utah 1993).

acquire private lands for public use. Condemnation powers

are limited by state constitutions and the Constitution of the
United States in that (1) property is not to be taken without
just compensation and (2) no person is to be deprived of
property without due process of law.114 Condemnation statutes
authorize private persons, including corporations, to condemn
private lands for quasi-public purposes. Inasmuch as mining
played a major role in the development of the West, mining,
including oil and gas operations, are deemed public uses for
which rights in real property may be condemned.
Under Utah law, for example, before the operator can
receive a judgment of condemnation, it must show that (1) the
use is authorized by law; (2) the taking is necessary to the use;
(3) construction and use will commence within a reasonable
time; and (4) if the lands have previously been appropriated
for public use, the use sought in the case at bar is a more
necessary public use.115
The Utah statute authorizes courts to enter an order
allowing the plaintiff to immediately use the lands for the
purposes sought. The prospective condemnor must show that
an order of immediate occupancy will not prejudice the
legitimate and constitutional right of the condemnee to receive
just compensation.116
R.S. 2477 Roads. Another vehicle providing access
across adjacent private lands to the leasehold in public lands
states117 is commonly referred to as R.S. 2477 roads. These
roads stem from public use on public lands (public domain
lands) over a period of years prior to enactment of FLPMA on
October 21, 1976. Since all public land entry patents issued
subject to prior existing rights, if vesting occurred, the
patentee took subject to the public road. R.S. 2477 roads
derived from wagon roads, trails, stock driveways, and the
like. The federal statute provided the right; state law
determines when and if the rights matured. The roads must
have been adopted and ostensibly maintained by political
subdivisions of the state.
Split-Estates. As with federal and Indian lands, split-estate
ownership poses the greatest access problem. Many states
have embraced the mineral estate dominance doctrine. That
doctrine is that the owner of the mineral estate may use so
much of the surface estate as reasonably necessary to extract
his minerals.118 Sometimes this doctrine is referred to as the
114

UTAH CONST. art. 7, 2; U.S. CONST. amend V.

115

Utah Code Ann. 78-34-4.

Utah Code Ann. 78-34-9.

110

See Lewis, supra note 2 at II.B.

116

111

See generally Sheryl L. Howe, Obtaining Rights of Way by Means Other

than an Express Grant, Rights OF WAY 8-1, 8-9 (Rocky Mt. Min. L. Fdn.
1998) for an excellent discussion of common law rights. See also Lewis,
supra note 2 at 814-15).

117

Public land states are those states other than the original 13 colonies and
Texas who came into the possession of the United State by acquisition or
conquest. The Louisiana Purchase and Mexican cession provided the great
bulk of public lands titles.

112

See, e.g., Tschaggeny v. Union Pac. Land Resources Co., 555 P.2d 277,
280 (Utah 1976).

118

See, e.g., Notch Mountain Corp. v. Elliott, 898 P.2d 550, 556 (Colo. 1995);
Carbon County v. Union Reserve Coal Co., 898 P.2d 680, 689 (Mont.
1995); Phillips v. Fox, 458 S.E.2d 327, 332 (W. Va. 1995); Smith v.
Linmar Energy Corp., 790 P.2d 1222, 1224 (Utah 1990) (citing Flying
Diamond Corp. v. Rust, 551 P.2d 509, 511 (Utah 1976)); Turley v. Flag-

113

See, id.

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SPE 87084

doctrine of alternative means.119 Of course, each case is fact

driven as to what constitutes reasonable access.

grounds to sue for an unconstitutional taking of property

without compensation. The questions loom.

State oil and gas conservation commissions

sometimes require that an operator obtain a surface damage
agreement or provide an affidavit of good faith efforts to
obtain an agreement with a surface owner before an APD will
be approved.120

This paper does not address these issues in depth.

Treatment is available in the legal literature.124 Suffice to say
the potential of being denied access to the operators mineral
estate in simultaneous extraction operations, absent a
cooperative resolution, looms large.

Access through Overlying Mineral

Estates to Subjacent Minerals.

Conclusion.

The Pennsylvania courts were the first to confront the issue of

access through overlying strata to subjacent mineral deposits.
The leading case is Chartiers Block Coal Co. v. Mellon.121 In
that case the coal seams had been severed from the surface fee
and the balance of the mineral estate. Later the owner of the
surface and other minerals granted a lease to a third party for
oil and gas. The coal operator sued for injunctive relief. The
court held that the owner of the oil and gas rights had an
implied right of access through the coal seams to the
underlying oil and gas deposits.122 This is the rule in most
jurisdictions.

Federal, Indian, and state law afford the coalbed methane

lessee rights and remedies to assure access and use of the
surface of the leasehold, over adjacent lands to the leasehold,
and through overlying mineral deposits to subjacent strata.
Exercising the rights, however, can prove costly in modern
climates given collective efforts of surface owners and local
governments to protect surface estate uses. The happy
message is that there is a way on and over the lands to the
leasehold. The frustrating message is that operators must
jump through more hoops, endure closer scrutiny of regulatory
agencies, and may be required to resort to litigation to get
there.

Access During Simultaneous Mineral

Operations on the Same Land.
A hot topic, particularly on federal public lands is access in the
face of concurrent or simultaneous development on the same
lands. Numerous articles have been written on the topic. In
the context of coalbed methane development, time honored
legal maxims of first-in-time first-in-right have little meaning.
Federal oil and gas leases, for example, expressly provide for
staged operations to conserve resources.123 If coal is allowed
to develop first simply because the coal is senior in time or
coal operations commenced first, the coalbed methane estate
will be depleted by operations. Should the BLM on federal
public lands issue leases on the same lands covering coal and
oil and gas, each lease implies the right of quiet enjoyment
the right to access the leasehold and develop the minerals. If
the BLM stages operations or directs one operator to proceed
before the other, the thwarted mineral owner may have
Redfern Oil Co., 782 P.2d 130 (Okla. 1989); Heikkila v. Carver, 416
N.W.2d 593, 596 (S.D. 1987); Moser v. U.S. Steel Corp., 676 S.W.2d 99,
103 (Tex. 1984); Mai v. Youtsey, 646 P.2d 475, 479-80 (Kan. 1982); Hunt
v. Kerbaugh, 283 N.W.2d 131, 135-37 (N.D. 1979); Diamond Shamrock
Corp. v. Phillips, 511 S.W.2d 160 (Ark. 1974); Getty Oil v. Jones, 470
S.W.2d 618, 621 (Tex. 1971).
119

See Phillip Wm. Lear, Multiple Mineral Development Conflicts: An

Armageddon in Simultaneous Mineral Operations?, 28 ROCKY MT. MIN.
L. INST. 79, 203-04 (1983).
124

120

See, e.g., Utah Admin Code. R649-3-18 (2003).

121

152 Pa. 286, 25 A. 597 (1893).

122

25 A. at 597.

123

See U.S. Dept. of the Interior, Bureau of Land Management, Offer to Lease
and Lease for Oil and Gas Form 3100-11 6 (Oct. 1992).

See, e.g., Phillip Wm. Lear & J. Matthew Snow, Coal and Coalbed
Methane Development Conflicts Revisited: The Oil and Gas Perspective,
PUBLIC Land LAW, REGULATION, AND MANAGEMENT, 10 (Rocky Mt. Min.
L. Fdn. 2003); Phillip Wm. Lear, Cooperative Multiple Mineral
Development Agreements: A Nuts and Bolts Approach, 43 ROCKY MT. MIN. L.
INST. 3-1 (1997); Phillip Wm. Lear, Multiple Mineral Development Conflicts:
An Armageddon in Simultaneous Mineral Operations, 28 ROCKY MT. MIN. L.
INST. 79 (1983); Phillip Wm. Lear, Conflicts in Simultaneous Mineral
Operations Revisited: Armageddon One Day Closer, THE LANDMAN 25
(Jan./Feb.Part I, Mar/AprPart II, May/JunPart III, 1992)].

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