Utah

Public Land

https://www.newyorke...gram_publishing

The only saving grace in all this is that it is hellishly difficult and expensive to actually do anything to develop these lands. The lawyer from Minneapolis behind this request to the Bureau of Land Management may be legit, but with oil & gas prices so low it seems likely he is just one more in a very long line of people that think they can get rich quick in the west. Eventually the money runs out and what is left behind is junk, damaged ecosystems and ugly things that, in a hundred years, will be considered as quaint old relics of a bygone era. 

Many a dream of wealth has died a slow miserable death in the dry deserts of the the souhwest and the Great Basin. No water, poor infrastructure, easy resources already exploited.

The lawyers response seems to me typical "gibberish"

the nicest word I can say here.

Why are our "public" lands just up for grabs?

Frank

With the BLM in control of 245 million acres of mostly Western US public lands and the USDA National Forest Service in control of another 193 million acres, primarily in the West, and with the USFS statutory mandate of managing under "multiple use" principals (and the BLM, too?  I dunno), processes for development of mineral resources are longstanding policies directly "in the wheelhouse" of such agencies.  Mr. McKibben's piece "examines" all day, every day normal practice for Federal Gummint agencies managing public assets in the manner in which the law has required for many decades.  In the area between Canyonlands and Arches, actual lease offerings, purchases, and drilling are extremely unlikely to ever see administrative approval. Thus the mere nomination process is an extraordinarily long shot which will in every likelihood never see the light of day. Mr. McKibben's piece is, in essence, an editorial. Not that there's anything wrong with his taking of a position against mineral development, but I just see it as a First Amendment position, not as a report of some imminent threat to public lands.

Foy

With the BLM in control of 245 million acres of mostly Western US public lands and the USDA National Forest Service in control of another 193 million acres, primarily in the West, and with the USFS statutory mandate of managing under "multiple use" principals (and the BLM, too?  I dunno), processes for development of mineral resources are longstanding policies directly "in the wheelhouse" of such agencies.  Mr. McKibben's piece "examines" all day, every day normal practice for Federal Gummint agencies managing public assets in the manner in which the law has required for many decades.  In the area between Canyonlands and Arches, actual lease offerings, purchases, and drilling are extremely unlikely to ever see administrative approval. Thus the mere nomination process is an extraordinarily long shot which will in every likelihood never see the light of day. Mr. McKibben's piece is, in essence, an editorial. Not that there's anything wrong with his taking of a position against mineral development, but I just see it as a First Amendment position, not as a report of some imminent threat to public lands.

 

Foy

Agreed. The old joke: "All the news that fits to print." jumped into my mind when I read the New Yorker article. It seems their readership desires the occasional 'despoilation of public lands' article so they can feel outraged while sipping their morning coffee.

I have spent most of my life wandering around the empty spaces in the western USA. A degree in expolation geophysics helped me understand what I was looking at. There is plenty of evidence of either failed investments or absolutely nothing but sparse rangeland and wilderness filling the landscape. It is true that in the late 1800's you could find native silver outcrops in Nevada, and gossans with rich ores lying underneath scattered about. But those days are long gone.

Some facile lawyer from Minneapolis is exceedingly unlikely to have discovered a huge disseminated ore body in the Colorado plateau, let alone a vast, accessible, cheaply exploitable oil or gas field. Good grief, the unimaginably gigantic oil deposits of Saudi Arabia can't be sold for much nowadays. And BP just dropped their 30 year outlook, taking a $17 Billion writedown.

As Foy said. Nothing will ever likely come of this.

I am curious as to what surface rights such a lease brings with it?   If you win one one of these leases, can you restrict surface access in any way?  Can you put in a road?   Can you use the land for anything besides drilling?  The article is a little short on details. 

I am also a little surprised that organizations like the Nature Conservancy or SUWA don't bid on these leases in sensitive areas like this as a matter of course.   The costs seem to be low and it would serve two purposes, if they win the lease it takes the area off the table for 10 years, if they don't win the bid it drives up costs and makes the area less attractive to industry.

I am curious as to what surface rights such a lease brings with it?   If you win one one of these leases, can you restrict surface access in any way?  Can you put in a road?   Can you use the land for anything besides drilling?  The article is a little short on details. 

 

I am also a little surprised that organizations like the Nature Conservancy or SUWA don't bid on these leases in sensitive areas like this as a matter of course.   The costs seem to be low and it would serve two purposes, if they win the lease it takes the area off the table for 10 years, if they don't win the bid it drives up costs and makes the area less attractive to industry.

As I understand it, the surface permits vary a lot depending on circumstances. 

- a couple of decades ago I read about a 'mining' lease being canceled in central Idaho. As it was, a group of lawyers from Seattle came up with a scheme to make the mining claims and then use the area as their own special backcountry retreat. They were booted off the land when they failed to show proof of good intention to develop their 'mine'.

- I have worked on a site on USFS land in north central Washington where the mining company had to helicopter drilling rigs and crews to various sites during the exploration phase. The company eventually gave up the lease after spending millions on predevelopment work and environmental impact studies. Other companies tried picking up where the first one left off and could never make a go of it.

- The nature Conservancy has tried to bid on leases in the past. But there is that 'good faith to develop' requirement that got the lawyers booted out of their sweet spot in Idaho...

My own mineral exploration days were spent in Texas, other Gulf Coast states, the Mid-Atlantic states, and Michigan & Wisconsin.  As such, I never worked a project on Federal Gummint lands, be they NF or BLM. But some statutory law and common law principles worth learning about include:

• The mineral estate can be and often is severed from the surface estate. Mineral rights (rights to the mineral estate) trump surface rights (no pun or political viewpoint is involved in use of the term "trump"--it's just common usage). If not for one estate prevailing over the other, there is little point in severing the mineral estate from the surface estate.

• An owner of mineral rights has rights to use, disturb, and generally occupy the surface in pursuit of use of his mineral rights. But the owner of the surface rights is entitled to compensation, called damages, for use of his surface rights. In cases where mining is to take place which involve substantial disturbing or destruction of surface assets, the damages normally take the form of an outright purchase of the surface rights.

• Yes, mineral rights owners can build roads and can restrict access on the surface, but only to the extent such is ordinary and necessary to protect or develop his mineral rights or to protect the public under "attractive nuisance" common law.  The Federal Gummint in particular can be (properly) very stingy about how surface assets can be dealt with on mineral lease tracts.  Point being there are few to no instances where the buyer of a mineral lease can just do as he pleases on the surface.

• The tying up of Federal Gummint lands in order to "get them off the market" has been tried before many times. In recent years (maybe 2008-2010 or so?), one individual went all the way through the process of registering to bid, bidding on, and being high bidder on a particular mineral lease offering.  He immediately announced he had no intention of drilling, and that he also had no intent to actually pay the price his winning bid had offered.  He was (properly) charged with defrauding the Gummint and spent several years in the Federal Pen for having done so.  There are probably lots and lots of better ways to make one's point.

The recent actions by the American Prairie Reserve (APR) have similarities to mineral development processes, only they affect strictly surface rights owned by the Federal Gummint.  The APR is buying large ranches in central and eastern Montana at market values as they become available.  Most large ranches have a relative minority of their acreage as deeded lands.  The majority of most large ranches are BLM lands subject to annual grazing lease payments.  So by purchasing the deeded acres, the APR essentially assumes the BLM grazing leases.  The trick is that to assume the grazing leases, the buyer must continue in the livestock business, otherwise the lease is null and void.  The APR (rather brilliantly) continues in the for-profit ranching business, but by substituting bison for cattle.  At some point in the future, one may assume the APR will exit the ranching business. And that point in time seems likely to be when the preponderance of deeded lands have been purchased such that BLM leases have little to no value due to there being little to no contiguous deeded ranch lands to purchase.  And at that point, the APR transfers its deeded lands back to the Federal Gummint under conservation easements.  Pretty dang slick, if you ask me. 

The point of all of this remains that the likelihood of actually doing something with public lands just because they have been nominated, especially lands in between two national parks, is so close to zero it's difficult to measure.  Mr. McKibben's piece is well crafted, but it in no way describes the potential taking of public lands in some cavalier fashion. Also, there are ways to preserve public lands well within the normal operations of the capitalistic economic and Gummint systems, and well designed preservation programs have been very successful in doing exactly that.

Foy

Edited by Foy, 16 June 2020 - 04:31 PM.

Last but not least, many of us understand that many of the roads and trails around Moab and southern Utah were made by uranium prospecting and development efforts from back in the 1950s and 1960s.  There are reasons to decry the very existence of such roads and reasons to be thankful for their presence. There is a balance somewhere, but I individually have no idea where it is.

Foy

Most often out west we have a mix of federal and state lands on many mining claims. Artful maneuvers are made, such as land swaps, to try to consolidate a prospective mining or petroleum site in a way that gets them out of any government oversight. That is usually not possible, so states or tribes and the federal government have a say about how the mining company can proceed. Too complicated to go into here, but suffice it to say states are often delegated to implement (including permitting) federal environmental laws and tribes may have a direct interest if some of the prospect is on tribal lands, or a strong interest if the site is on treaty recognized Usual and Accustomed lands. Like I said -- very complicated. It is rare for surface and subsurface rights to be considered separable in most western mining or oil & gas permitting actions. 

Books can, and have, been written about how to successfully negotiate the complexities. The biggest mistake I have seen, repeated very often, is people from outside the area think they can waltz in and displace local concerns. Again, books can and have been written about working with locals to get them on board with the mining companies' proposals.

The lawyer, Craig, interviewed for the The New Yorker article has zero chance of getting any traction until he gets a sizeable fraction of the locals to support his idea. And amazingly enough, to get that support he will need to make a whole lot of concessions (up-front, since most of these communities have considerable experience with wringing tangible wealth from their local public lands.)

That is the main reason, other than questionable judgement about the extracted value of any natural resources, that lawyer Craig's ideas are not worth worrying about. You know something serious is up when the County Commissioners, local churches, state legislators, and the coffee shop baristas begin happy talk about a new mine. And if the local tribes, almost always more than one tribe is involved, are supportive then the probability is much higher that the development will take place.

Edited by AWG_Pics, 17 June 2020 - 02:48 AM.