Effects of Roads on Energy and Mineral Resources

The road-related issues associated with energy and mineral resources fall into three overlapping categories: access rights, property rights, and benefits and negative effects. These issues are a consequence of the inherent nature of the resources and their treatment under existing law. The defining characteristic of energy and mineral resources is nonrenewability; energy and mineral resources are finite, so extraction inevitably leads to resource exhaustion. Depleted deposits must be replaced either through domestic exploration and mine or field development or through importation. In many places, National Forest land is underlain by deposits of nonrenewable resources, some of which are privately held. Demand for access to many of these deposits is inevitable.

The extractive industries want, and have certain legal rights to, access to public land to explore for energy and mineral deposits. The access may be on existing forest roads or may require building of new roads. The Forest Service road system facilitates extraction of energy and mineral resources from public lands, which can benefit society. Mineral developments and oil fields in and of themselves can affect the environment negatively, such as by loss of habitat, increased noise, and added particulate emissions in the air and water, but these effects can be attributed only secondarily to roads; that is, without the road, mineral development might not have taken place.

Federal law and Forest Service policy clearly support exploration for and extraction of resources from public land. Leasable resources (that is, metallic minerals found on acquired land and all energy resources) are managed under the Mineral Leasing Act of 1920. Locatable minerals, primarily the metallic ones on public domain land, are managed under the Mining Law of 1872. Saleable minerals (that is, common varieties such as gravel) are managed under the Mineral Materials Act of 1947. These laws predate the National Forest Management Act of 1976 and the Multiple Use Sustained Yield Act of 1960.

Under the Mining Law of 1872, U.S. citizens and firms have the right to explore for and stake claims to selected minerals on all public domain land not specifically withdrawn from mineral entry. Claims are valid in perpetuity or can be converted to private property rights (that is, patented) assuming that appropriate legal requirements are fulfilled. The Forest Service cannot unilaterally deny exploration access to National Forest public domain land, but the agency does have the right to withdraw specific areas from further mineral entry. The agency cannot prevent staking of a claim on this land, and a claim holder is entitled to use the surface for activities attendant to exploring for, developing, and extracting minerals, within the limits set by Federal, State, and local environmental laws. The agency cannot block an otherwise legal patent (that is, deny a claim holder the right to convert the claim to private property). The Congress can, and has, placed a moratorium on new patents, but the moratorium could be lifted in the future. In any event, hundreds of thousands of patented and unpatented claims are already held within the administrative boundaries of the National Forests.

The Forest Service has considerably more control over the location of exploration and development activities for leasable minerals than it has for locatable minerals. For National Forests and Grasslands with completed oil and gas leasing Environmental Impact Statements, petroleum exploration activities are restricted to areas designated as appropriate in those documents. The regions also are taking an active role in directing access for leasable minerals. For example, the Northern Region is attempting to restrict oil and gas exploration to areas relatively near existing roads. This approach is not without potential for controversy, however. Decommissioning of roads could be perceived as a de facto withdrawal of the adjacent lands from exploration. The circuit courts are split on the question of whether failure to offer land for lease is tantamount to withdrawal.

The Forest Service is required by law to provide reasonable access to valid existing mineral rights, regardless of their form, whether unpatented claim, lease, or private property, as a patented claim or subsurface mineral right. An unpatented claim is an implied property right that can be held, sold, or inherited, and access is regulated under the Mining Law of 1872. Patented claims are private property, and access is regulated under the Alaska National Interest Land Conservation Act of 1980 (ANILCA). Coal, oil and gas, and mineral leases also offer a limited form of property right. The rights to individual energy and mineral resources may be held by different legal entities, and the mineral rights may be severed from the surface, which is termed a "split estate." Access to unpatented inholdings, patented claims, leases, and severed mineral rights can be restricted but seldom denied. Access may be by the existing road system or may require new roads. The Forest Service is neither required by law nor expected by industry to build or maintain energy and mineral access roads. Roads built for other reasons (for example, in support of recreation development) might be paid for by the Forest Service but also be used by a mining or energy firm. The firm is always required to maintain the road or to pay for road maintenance called for by its activities; it frequently pays through a reimbursement arrangement with the agency.

The Forest Service can affect the location and design of roads built on National Forest land to support energy and mineral activities. In addition, the agency can sometimes place stipulations on access by limiting road use to certain months, permitting aerial access only, or precluding surface occupancy. Constraints that are unduly expensive to fulfill or so restrictive as to make an otherwise economic mineral deposit uneconomic, however, might well be perceived as denying reasonable access. Temporary roads often are built to facilitate energy and mineral exploration activities. Building plans are subject to review and approval by the agency. If no discovery is made, the exploration firm may be required to obliterate the road. Alternatively, the road may be upgraded to permanent status, depending on the circumstances and legal authority. Public use of the road may sometimes be limited because a road condition acceptable to the mineral industry may be neither acceptable to, nor safe for, the general public. In addition, particularly for exploration, the agency may permit access that does not require roads, including access by helicopter, foot, horseback, and all-terrain vehicles.

The energy and minerals industries use the existing road system in exploration, development, extraction, and reclamation activities. Only a small portion of the entire road system is affected in any given year, but it is reasonable to assume that most roads will be used by the minerals industry over the long term. Designating a subset of the existing road system as having no future benefit to the industry is impractical because geographic targets for exploration and development change in response to technological advances and market fluctuations. Limiting mineral exploration access to areas where minerals have already been or are being extracted could preclude future discoveries. Road closures or decommissionings are controversial. Firms wanting to rebuild obliterated roads could face long delays because of the lengthy approval process now in place for building new roads. Such delays could disrupt multiyear exploration and development plans and financing. The energy and mineral resources produced from National Forests are essential to the manufacturing, farming, building, and power-generating industries. A value of $4.3 billion was estimated in 1995. Forest Service production represents only a small part of the total value of U.S. production, however. For example, the copper produced on National Forests represents only 1 percent of total U.S. copper production. Sometimes, however, production from National Forests is a significant percentage of domestic production; National Forests accounted for 80 percent of domestic lead production in 1995. Significant amounts of coal and molybdenum also are produced on National Forests. These contributions to the domestic economy are made possible by use of the forest road system.