In Wyoming, the Bureau of Land Management (BLM) manages approximately 11.6 million acres of federal minerals under private surface (referred to as split-estate lands), of which, approximately 900,000 acres lie within the Bighorn Basin Planning Area. The majority of this split-estate land was patented under the Stock Raising Homestead Act (SRHA) of December 29, 1916, as amended, (43 United States Code [U.S.C.] § 299).

By the late 1800s, much of the public domain lands had been transferred to private ownership either by sale or by homesteading. The 1882 annual report from the General Land Office pointed out that during the 1800s, companies had fraudulently acquired great quantities of valuable coal and other lands. In response to this and subsequent investigations, President Theodore Roosevelt, in 1906, withdrew more than 66-million acres of coal lands from settlement and location. Congress questioned whether the President had authority to do this. In 1910, Congress passed the General Withdrawal or Pickett Act, giving the President power to “temporarily” withdraw public lands from settlement and location for public purposes.

In response to the uproar that this created among politicians, business people, and homesteaders, President Roosevelt signed the Act of March 3, 1909 (30 U.S.C. § 81), which allowed homesteaders who had settled coal lands to patent those lands, as long as the coal was reserved to the United States. The Act of June 22, 1910 (30 U.S.C. § 83), permitted homesteaders to file for coal lands, as long as the coal was reserved to the United States.

The mineral policies were extended to reserving portions or, in most cases, the full mineral estate to the United States by the Act of July 17, 1914 (30 U.S.C. § 121, 122). That Act opened lands that were withdrawn or classified for phosphate, nitrate, potash, oil, gas, or asphalt minerals, or allowed those deposits entry under the appropriate Homestead Acts (HA). Finally, the SRHA reserved all minerals to the United States.

As part of the mineral policies initiated during his Presidency, Theodore Roosevelt had advocated a leasing policy for coal and petroleum lands, but Congress resisted the idea. In 1917, potassium deposits could be leased with the enactment of the Potash Leasing Act, which passed because potassium was essential to America’s production of military explosives during World War I. After numerous proposals and much heated debate in Congress, the Mineral Leasing Act (MLA) (30 U.S.C.§ 181 et seq.) was adopted in 1920 and extended leasing to coal, petroleum, natural gas, sodium, phosphate, oil shale, and gilsonite. Under the appropriate provisions and authorities of the MLA, individuals and companies could prospect for and develop the minerals associated with the Act.

Discussed in this appendix is what authority the BLM has to condition and regulate federally authorized leases, specifically oil and gas, on split-estate lands and the policy and guidance used to accomplish this.

The BLM is mandated by the Federal Land Policy and Management Act (FLPMA) of 1976, Section 202, to develop, maintain, and revise land use plans on public lands, where appropriate, using and observing the principles of multiple use and sustained yield. Section 103(e) of the FLPMA defines public lands as any lands and interest in lands owned by the United States. The mineral estate is an interest owned by the United States. The BLM has an obligation to address this interest in their planning documents (43 Code of Federal Regulations (CFR) 1601.0-7(b); Bureau Manual 1601.09).

The FLPMA is intrinsically tied to the mandate provided by the National Environmental Policy Act (NEPA) of 1969. Specifically, Section 102 of NEPA states, “Congress authorizes and directs the federal government and its agencies to use a systematic interdisciplinary approach which insures the integrated use of the natural and social sciences and the design arts in planning and decisionmaking where man has an impact on man’s environment.”  This theme is also present in Section 202(c)(2) of the FLPMA where, as with NEPA, it recognizes that management of the public lands and resources and the consequences associated with their use or consumption are tied to biologic, ecologic, social, and economic boundaries, not merely surface boundaries.

Through the years, from the planning stage through development of the mineral estate, two areas of concern have consistently arisen from this split-estate land issue: Does the BLM have the statutory authority to regulate how private surface owners use their property, and does the BLM have the authority to condition and regulate a federal mineral development, such as federal oil and gas leases. These two concerns have been addressed in the resolution of two resource management plan (RMP) protests in 1988 on split-estate lands (North Dakota RMP and Little Snake RMP) and two Washington Solicitor’s Opinions (April 1 and 4, 1988). The conclusion states:

An example of the authority the BLM does have, is summarized in the January 7, 1992, Interior Board of Land Appeals (IBLA) Decision (122 IBLA 36, Glen Morgan, January 7, 1992), which states that “The operator of an oil and gas lease is responsible for reclamation of land leased for oil and gas purposes, even after expiration of the lease and even where the surface estate is privately owned. Such reclamation includes the restoration of any area within the lease boundaries disturbed by lease operations to the condition in which it was found prior to surface- disturbing activities.” Another key point presented in this IBLA decision referenced the reservation of mineral reserves under section 9 of the SRHA. This section states that the United States reserves the “right to prospect for, mine, and remove the [reserved minerals],” which right encompasses “all purposes reasonable incident to the mining or removal of the coal or other minerals” (43 USC §299, 1988). As long interpreted by the United States Department of the Interior (DOI), such purposes include reclamation of the surface of the impacted land after mining is complete and the minerals are removed.