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“And Then There Were None” - Evolving Federal Restraints on the Availability of Public Lands For Mineral Development

Raymond A. Peck, Jr., Proceedings of 25th Annual Rocky Mountain Mineral Law Institute (1979)

Access to the public lands for the development of mineral resources has never been less assured. Current Executive Branch policy is aggressive with respect to the use of withdrawal authority, both direct and indirect. In each specific recent exercise of such authority, the procedural mechanisms created and the specific withdrawal result would appear to entail at best only nominal compliance with the mandates of Congress that land use management decisions be made in a balanced way, and designed so as to achieve the maximum multiple use benefit of the resource.

With respect to the land use planning mechanisms now being implemented, positive imbalance may also easily occur.

It is now clear that what has been called the quiet federalization of land use controls has in fact occurred.319 Under FLPMA, the preservationists of the public and the private sectors have begun to make active use of its land-use planning mechanisms to ensure not only [3-105] that land use planning gives full weight to intangible, environmental factors, but also that actual management choices reflect to the greatest degree possible the primacy of environmental concerns.

In each such case, the burden of proving the need for and desirability of development of the resources is now squarely placed upon the proposed developer.

The adverse effects of such a policy may never fully