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
Access for mineral operations was relatively manageable from the operator's 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 right-of-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 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 pre-issuance 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