486 F.Supp. 995 (D.Utah 1979), C 79-0037, State of Utah v. Andrus

Docket Nº:C 79-0037, C 79-0307.
Citation:486 F.Supp. 995
Party Name:The STATE OF UTAH, by and through its Division of State Lands, Plaintiff, v. Cecil D. ANDRUS, Individually and as Secretary of the United States Department of the Interior; Frank Gregg, Individually and as Director of the Bureau of Land Management within the Department of the Interior; William Whalen, Individually and as Director of the National Pa
Case Date:October 01, 1979
Court:United States District Courts, 10th Circuit, District of Utah

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486 F.Supp. 995 (D.Utah 1979)

The STATE OF UTAH, by and through its Division of State Lands, Plaintiff,


Cecil D. ANDRUS, Individually and as Secretary of the United States Department of the Interior; Frank Gregg, Individually and as Director of the Bureau of Land Management within the Department of the Interior; William Whalen, Individually and as Director of the National Park Service within the Department of the Interior; Robert S. Bergland, Individually and as Secretary of the United States Department of Agriculture; and John McGuire, Chief of the Forest Service within the Department of Agriculture, Defendants.

UNITED STATES of America, Plaintiff,


COTTER CORPORATION, a subsidiary of Commonwealth Edison, Defendant.

STATE of UTAH, by and through its Division of State Lands, Defendant-in-Intervention.

Nos. C 79-0037, C 79-0307.

United States District Court, D. Utah, Central Division.

Oct. 1, 1979

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Robert B. Hansen, Atty. Gen., Richard L. Dewsnup, Dallin W. Jensen, Asst. Attys. Gen., Salt Lake City, Utah, for plaintiff.

Ronald L. Rencher, U.S. Atty., and James R. Holbrook, Asst. U.S. Atty., Salt Lake City, Utah, for defendant United States of America.

Dale A. Kimball, Martineau, Rooker, Larsen & Kimball, Salt Lake City, Utah, and John D. Havens, Lakewood, Colo., for defendant Cotter Corp.

Kea Bardeen, and James G. Watt, Denver, Colo., for amicus curiae Mountain States Legal Foundation, Utah Mining Association, Independent Petroleum Association of the Mountain States, and Independent Petroleum Association of America.

Mary Jane Due, Washington, D. C., for amicus curiae American Mining Congress.


(In Lieu of Findings of Fact, Conclusions of Law, and Order, under Rule 52, F.R.C.P.)


This is a case of first impression involving important questions concerning the administration and use of public lands. Plaintiff, the United States, filed suit on May 25, 1979, seeking a temporary restraining order to prevent Cotter Corporation (hereinafter Cotter) from engaging in "any construction, road building, leveling land, or destroying primitive, scenic and wildlife characteristics" on certain federal land. The court granted the order. 1

The State of Utah moved to intervene as a party defendant. It was unopposed and the motion was granted by the court. Thereafter, Utah filed an answer to the complaint and a counterclaim, alleging that by denying Utah's lessee (Cotter) access to certain state school trust land (section 36) the United States violated a compact with the state and interfered with its right to fully utilize the school trust land. This was followed with a motion for summary judgment. On June 6, 1979, the state filed a motion to consolidate this case with Utah v. Andrus, C 79-0037, (D.Utah, filed January 16, 1979). On finding that consolidation would serve the interests of judicial economy and would not prejudice the parties, the motion was granted. 2

On July 12, 1979, argument was heard on the request for permanent injunction and the matter was fully submitted, with final briefs filed thereafter. 3 The court has carefully considered the matters presented and is ready to rule.


This case involves access to mining claims located on both federal and state land. 4 The state land is surrounded by land in

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federal ownership and land access to section 36 is possible only by crossing federal property. The state land was granted to Utah by the United States under the Utah Enabling Act (Act of July 16, 1894, 28 Stat. 107). The major portion of the land in territorial Utah, at the time of statehood, was in federal ownership. In order to provide a tax base for the new state, the federal government granted to Utah certain sections of land in each township specifically, sections 2, 16, 32 and 36. But this grant was not unconditional nor was it a unilateral gift. In order to receive the grant, Utah, like other states, was required to use the proceeds of the granted lands for a permanent state school trust fund. Utah met all the conditions of the federal grant 5 and, upon statehood, received the sections of land. 6

As a result of the state school land grants, the pattern of property ownership in much of Utah represents a checkerboard, with sections of school trust land interspersed within federal land. Since nearly two-thirds of Utah's land is in federal ownership, 7 and since this land frequently surrounds state school sections, the question of access rights and activity on state school and federal land is of utmost importance to both Utah and the United States. In most situations, neither sovereign can take any action with regard to its land holding without impacting the other's land.

On October 21, 1976, the United States Congress passed the Federal Land Policy and Management Act (FLPMA) intended to provide, in part, a new statutory base for the Bureau of Land Management's (BLM) administration of the lands within its jurisdiction. Only a few are pertinent here. Under section 201(a) (43 U.S.C. s 1711(a) (Supp.1979)), the BLM 8 is directed to conduct an inventory of all BLM managed lands and their resource and other values. Under s 603(a) (43 U.S.C. s 1782(a) (Supp.1979)), BLM is directed to examine all roadless areas of 5000 acres or more which have been identified during the inventory process as having wilderness characteristics. Based on this review BLM is to recommend to the President whether or not each such area should be preserved as wilderness according to the provisions of the Wilderness Act (16 U.S.C. s 1131 et seq. (1974)). During this period of review BLM is to manage the lands so as to prevent impairment of wilderness characteristics and unnecessary and undue degradation of the environment. (Section 603(c), 43 U.S.C. s 1782(c) (Supp.1979)). It was against this historical and statutory backdrop that Cotter located its mining claims and began building a road to gain access to those claims.

Cotter Corporation is a uranium mining and exploration company wholly owned by Commonwealth Edison, a public utility serving Northern Illinois. (Affidavit of Erik Bruner, filed June 11, 1979.) Between January and June, 1976, Cotter acquired additional federal claims and the state mineral lease on section 36. (Id.) The federal claims were located pursuant to the Mining Law of 1872 (30 U.S.C. s 22 et seq.).

During that last six months of 1977, Cotter conducted drilling operations on federal land to the north and to the south of the lands at issue here. These operations indicated a "trend" of uranium ore between the two drilling points. Subsequent drilling operations confirmed the trend. In order to conduct these operations, Cotter constructed access roads (Bruner affidavit), but did not notify BLM of the construction activity. In June, 1978, Cotter began to construct a road across the lands in question here in order to further its exploratory drilling.

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In the meantime, BLM proceeded with the inventory and wilderness area examination required by FLPMA. During the review, BLM identified a portion of roadless unit UT-05-236 as being appropriate for designation as a Wilderness Study Area (WSA). 9 The proposed study unit includes the lands in question here. In April, 1979, BLM published the proposed area in the Federal Register and has received public comment on the proposal (Affidavit of Donald C. Pendleton, filed May 25, 1979). As yet BLM has not finally decided to designate the area a formal WSA. The court is informed that in all likelihood the area will be so designated. 10

When BLM became aware of Cotter's road building activity in June, 1978, it contacted Cotter personnel and advised them of BLM's interest in the area and requested that the road building activity be brought to a halt. Cotter agreed to this request and ceased all construction activity for approximately one year. (Bruner affidavit.) On May 24, 1979, Cotter notified BLM of its intention to begin construction of a road to gain access to section 36 (Complaint, Exhibit A). BLM then instituted this proceeding.


At stake here are three very important and conflicting interests. The state of Utah has a clear interest in protecting its rights under the grant of school trust lands and in being able to use those lands so as to maximize the funds available for the public schools. Cotter, of course, has an interest in developing its claims in the most economical way possible. Finally, the United States has an interest in preserving for future generations the opportunity to experience the solitude and peace that only an undisturbed natural setting can provide. As noted herein, these public interests conflict. This is reflected in the more narrow questions of statutory interpretation and reconciliation posed for decision. In order to resolve the issues and effect a balance of interests, it is important to examine each interest and its statutory base.

I. State School Trust Land

As previously explained, the state school land grants were not unilateral gifts made by the United States Congress. Rather, they were in the nature of a bilateral compact entered into between two sovereigns. In return for receiving the federal lands Utah disclaimed all interest in the remainder of the public domain, agreed to forever hold federal lands immune from taxation, and agreed to hold the granted lands, or the proceeds therefrom, in trust as a common school fund. Thus, the land grants involved here were in the nature of a contract, with a bargained-for consideration exchanged between the two governments. See Utah v. Kleppe, 586 F.2d 756, 758 (10th Cir. 1978), cert. granted 442 U.S. 928, 99 S.Ct. 2857, 61 L.Ed.2d 296 (1979).

Recognition of the special nature of...

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