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Access Over Public Lands

Mary Jane C. Due, Proceedings of 17th Annual Rocky Mountain Mineral Law Institute (1971)

Traditionally the Congressional enactments which invited the public to settle, locate, and enter upon the public domain, also invited access across the public domain for those purposes enumerated in the various land laws and under the general invitation of the mining law to explore for and develop minerals.1

It is elemental in such established policy that access is an absolute necessity. The mining claimant or a lessee, under the various leasing acts, must be able to get to his claim and be able to remove from his claim or the leased area any minerals which he may find. In so doing he may use existing roads and trails, and as hereinafter more fully outlined, construct his own access over the public domain.2


Disputes concerning rights of access have plagued the natural resources lawyer and landman since the beginning of public land law.

The battle for access to water and the use of and rights in the surface estate raged long prior to the turn of the century. Conservationists and others, then as now, were concerned with legislative policies which they felt constituted a giveaway of publicly owned minerals, lands and priorities of use.

When uses of the surface have conflicted with the exploitation of minerals the traditional answer of the courts has been that the mineral estate is the dominant estate and that, where there is con