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Cost Recovery by Federal Land Management Agencies: Fees For Benefits Received or Unlawful Tax?

Gail L. Achterman, Proceedings of 26th Annual Rocky Mountain Mineral Law Institute (1980)

Revenue generation has been a controversial aspect of public lands policy since before the end of the Revolutionary War.1 Today this debate continues, complicated by regional conflict, the quest for environmental quality, and numerous other social and political objectives. Because the federal government has decided to retain its lands, sales are no longer an issue. The focus of the revenues question is now primarily on what return the government should receive when these lands are privately used. This paper addresses the history and evolution of the cost recovery concept as applied to public land programs. Particular attention is given to the cost recovery [314] provisions of the Federal Land Policy and Management Act (FLPMA).2

Following an introductory section analyzing the policy context of the revenues issue, the current cost recovery program of the Bureau of Land Management (BLM) is analyzed. This program is now limited to recovery for expenses related to rights-of-way across federal lands; however, it can be expanded to cover all other BLM programs as well.3 The existing BLM program is then analyzed in light of recent judicial opinions considering the constitutionality and statutory validity of both the BLM program and other cost recovery programs. Finally, potential methods for challenging BLM cost recovery charges are outlined.

The current BLM program