Withdrawal of Federal Lands: Analysis of a Common Legislated Withdrawal Provision

Withdrawal of Federal Lands: Analysis of a Common Legislated Withdrawal Provision

Withdrawal of Federal Lands: Analysis of a
January 15, 2021
Common Legislated Withdrawal Provision
Carol Hardy Vincent
Lands and interest in lands owned by the United States (i.e., federal lands) have been withdrawn
Specialist in Natural
from agency management under various public land laws. Federal land withdrawals typically
Resources Policy
seek to preclude lands from being used for certain purposes (i.e., withdraw them) in order to

dedicate them to other purposes or to maintain other public values. For example, some laws
Erin H. Ward
established or expanded federal land designations, such as wilderness areas or units of the
Legislative Attorney
National Park System, and withdrew the lands apparently to foster the primary purposes of these

designations. Withdrawals affect lands managed by agencies including the four major land
management agencies: the Bureau of Land Management (BLM), U.S. Fish and Wildlife Service

(FWS), and National Park Service (NPS), all in the Department of the Interior, and the U.S.
Forest Service (FS), in the Department of Agriculture.
Federal lands have been withdrawn under various authorities. Congress has enacted particular withdrawal provisions in
similar form in many individual laws, referred to herein as legislated withdrawals. An analysis of the meaning of these
provisions could aid congressional development and consideration of withdrawal legislation. In general, legislated
withdrawals typically withdraw the land from one or more of three general categories of laws: (1) public land laws, (2)
mining laws, and (3) mineral leasing laws. For analysis purposes, this report uses the following example provision that
appears in some legislated withdrawals: subject to valid existing rights, [the federal land] is withdrawn from (1) all forms of
entry, appropriation, and disposal under the public land laws; (2) location, entry, and patent under the mining laws; and (3)
operation of the mineral leasing, mineral materials, and geothermal leasing laws. Legislated withdrawals may include
variations on this language depending on Congress’s objectives for the parcels. A more complete understanding of the
meaning of a specific legislated withdrawal might require examination of its legislative history and the laws, policies, and
management plans governing the affected parcels.
The first component of the example provision generally would bar third parties from applying to take ownership and
obtaining possession of the lands or resources on the lands under public land laws. However, the lack of a comprehensive list
of public land laws —and the lack of a single, consistent definition of the term public land laws itself over time—makes it
challenging to determine the precise meaning and applicability. The second component generally would prevent the
withdrawn lands from being available for new mining (e.g., under the General Mining Law of 1872). The third component
generally would prevent the withdrawn lands from being available for new mineral leasing, sale of mineral materials, and
geothermal leasing (e.g., under the Mineral Leasing Act of 1920, Materials Act of 1947, and Geothermal Steam Act of 1970).
Together, the three components primarily would affect BLM and FS, because laws governing lands managed by those
agencies generally allow for energy and mineral development and provide broader authority to convey lands out of federal
ownership than laws governing NPS and FWS lands. Typically, the three components would not bar various surface uses that
otherwise might be allowed, possibly including recreation, hunting, and livestock grazing. However, some uses might be
limited by Congress or by subsequent agency actions, such as amendments to land management plans, if the uses are
inconsistent with the withdrawal’s purposes.
Legislated withdrawals generally are made “subject to valid existing rights.” Including this phrase appears to protect third-
party (i.e., non-federal) interests in withdrawn federal land from being terminated or limited by the withdrawal. Though
commonly used, there is no universal definition or interpretation of which interests qualify as valid existing rights. The
validity of the interest generally depends on whether the third party has met the requirements of the law under which it
alleges to have secured the interest. In addition, the interest claimed by the third party generally must have existed at the time
of withdrawal. Finally, the third party generally must have obtained a property interest in the land (e.g., ownership) to have a
right—mere use of the land is insufficient. The “valid existing rights” that a particular withdrawal is “subject to” could arise
under any number of current or former laws that allowed third parties to obtain interests in federal land. Accordingly, courts
and agencies have interpreted the phrase on a case-by-case basis, considering the purpose and structure of the relevant law.
Where legislated withdrawals are enacted “subject to valid existing rights,” the existing rights remain in effect after the
withdrawal. In some cases, acquiring or “taking” those rights may serve the purpose of the withdrawal. The federal
government may acquire such rights by taking the property through the power of eminent domain, which would require “just
compensation” under the Takings Clause of the U.S. Constitution, or through voluntary transactions such as purchase,
exchange, or donation. Congress may consider appropriating funds for any such acquisitions.
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Contents
Introduction ................................................................................................................... 1
Purposes of Legislated Withdrawals ................................................................................... 2
Legislated Withdrawal Variations ...................................................................................... 3
Omissions ................................................................................................................ 3
Limitations ............................................................................................................... 3
Future Applicability ................................................................................................... 3
General Considerations in Determining Meaning............................................................ 4
Analysis of Legislated Withdrawal Components .................................................................. 5
Entry, Appropriation, and Disposal Under the Public Land Laws....................................... 6
Public Land Laws................................................................................................. 6
Entry, Appropriation, and Disposal.......................................................................... 8
Effect on Surface Uses .......................................................................................... 9
Location, Entry, and Patent Under the Mining Laws...................................................... 10
Operation of the Mineral Leasing, Mineral Materials, and Geothermal Leasing Laws......... 11
Mineral Leasing Act of 1920 ................................................................................ 11
The Materials Act of 1947 ................................................................................... 12
Geothermal Steam Act of 1970 ............................................................................. 12
Interpreting “Subject to Valid Existing Rights”............................................................. 12
Defining “Valid Existing Rights” .......................................................................... 14
“Subject to” Valid Existing Rights ........................................................................ 17
Identifying Valid Existing Rights ............................................................................... 17
Summary of Analysis..................................................................................................... 18

Contacts
Author Information ....................................................................................................... 19

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Withdrawal of Federal Lands: Analysis of a Common Legislated Withdrawal Provision

Introduction
Lands and interest in lands owned by the United States (i.e., federal lands) have been withdrawn
from agency management under various public land laws. Federal land withdrawals typical y
seek to preclude lands from being used for certain purposes in order to dedicate the lands to other
particular purposes or maintain them consistent with certain public values. Congress may
effectuate withdrawals through new laws or the executive branch may withdraw land under
differing authorities (as noted below in this section).1 This report focuses on one type of
withdrawal provision that Congress has enacted in individual laws, hereinafter typical y referred
to as legislated withdrawals.
Though legislated withdrawals seek to withdraw the designated land from a specified set of laws,
which set of laws and the exact terms used vary. The variation depends in large part on
Congress’s intent for how the lands should be managed by federal agencies and used by the
public following the withdrawal. In general, legislated withdrawals typical y withdraw the land
from one or more of three general categories of laws: (1) public land laws, (2) mining laws, and
(3) mineral leasing laws. This report bases its analysis on the following example provision, used
in some legislated withdrawals, that includes al three categories of laws:
Subject to valid existing rights, [the federal land] is withdrawn from:
(1) all forms of entry, appropriation, and disposal under the public land laws;
(2) location, entry, and patent under the mining laws; and
(3) operation of the mineral leasing, mineral materials, and geothermal leasing laws.2
In this report, each of these three components of a withdrawal provision is referenced by its
adjacent number above. This exact provision appears in some withdrawal laws, but components
thereof or variants on this language have been used in many other legislated withdrawals.3 Many
of the terms in this provision have historical roots and are interpreted differently by the courts and
agencies in the public land context than in common parlance.4
To aid in the congressional development and consideration of withdrawal legislation, this report
discusses the meaning of each of these three components, as wel as the limitation that the
withdrawal be “subject to valid existing rights.” This analysis could aid Congress in drafting and
enacting withdrawal measures with the particular components (or variations) desired for the land
parcels at issue. Enhanced precision and clarity of withdrawal measures might augment agency
understanding of how Congress intends the lands to be managed following enactment of a
legislated withdrawal. It could also foster public understanding of al owable uses of federal lands
that have been withdrawn legislatively.

1 T he authority for Congress to make land withdrawals derives from the Property Clause of the U.S. Constitut ion,
Article IV, Section 3, Clause 2. T his provision gives Congress authority over the lands, territories, or other property of
the United States, thus providing Congress broad authority over lands owned by the federal government.
2 See, for example: P.L. 116-9, 133 Stat. 580, 629 (116th Cong.); P.L. 109-94, 119 Stat. 2106 (109th Cong.); P.L. 109-
385, 120 Stat. 2681 (109th Cong.) (providing for valid existing rights in a separate subsection but otherwise identical).
3 T his provision or variants thereof appeared in 116th Congress bills and laws. See, for example, P.L. 116-9, 133 Stat.
580 (116th Cong.).
4 See U.S. Department of the Interior, Bureau of Land Management (BLM), Glossaries of BLM Surveying and
Mapping Term s, 2003 (searchable PDF), at https://www.blm.gov/or/gis/geoscience/files/BLMglossary.pdf; and
Mansfield, Maria E. “A Primer of Public Land Law.” Washington Law Review, vol. 68, no. 4, October, 1993.
Hereinafter referred to as Mansfield, A Primer of Public Land Law.
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Withdrawal of Federal Lands: Analysis of a Common Legislated Withdrawal Provision

Legislated withdrawals may affect lands managed by different federal agencies. This report
focuses on withdrawals affecting lands of the four major federal land management agencies.
These agencies are the Bureau of Land Management (BLM), the U.S. Fish and Wildlife Service
(FWS), and the National Park Service (NPS), al in the Department of the Interior, and the U.S.
Forest Service (FS), in the Department of Agriculture.
This report does not address standing authorities in statutes that have delegated withdrawal
authority to the President or agencies. Among other examples, these laws al ow the President to
withdraw federal lands for national monument purposes under the Antiquities Act of 1906 and
lands in the outer continental shelf from disposition under the Outer Continental Shelf Lands
Act,5 and al ow the Secretary of the Interior to issue public land orders withdrawing land under
the Federal Land Policy and Management Act of 1976 (FLPMA).6 In addition, throughout U.S.
history, many land withdrawals were made under authorities that have since been repealed by
FLPMA and other laws.7 This report does not address withdrawal authorities that are no longer in
effect.
Purposes of Legislated Withdrawals
In general, legislated withdrawals often seek to preclude specified lands from being used for
certain purposes so as to maintain other public values in the area or reserve the land for a
particular public purpose or program. For example, some laws established or expanded federal
land designations—such as wilderness areas, national conservation areas, national monuments,
national recreation areas, and units of the National Park System—and withdrew the lands
apparently to foster the primary purposes of these designations.8 Another purpose of legislated
withdrawals has been to facilitate the subsequent conveyance of federal lands to individuals or
entities under specified terms and conditions.9 Other withdrawal laws have reserved lands for use
by the military for national defense purposes.10 The purpose of other legislated withdrawals is not
readily apparent from the enacted text,11 though other congressional, federal agency, or public
sources may have addressed the purposes.

5 T he Antiquities Act is codified at 54 U.S.C. §§320301-320303. T he Outer Continental Shelf Lands Act is codified at
43 U.S.C. §1341(a).
6 43 U.S.C. §1714.
7 Some repealed authorities allowed for withdrawals by executive orders, secretarial orders, and presidential
proclamations.
8 Examples of provisions of law that established or expanded land designations and contained withdrawals of t he
affected lands—primarily BLM and U.S. Forest Service (FS) lands—include the following: P.L. 111-11, §§1202, 1503,
and 1803, among others, for designation of Wilderness Ar eas; §1974 and §§2202-2203, among others, for
establishment of National Conservation Areas; §1204 for establishment of the Mount Hood National Recreation Area;
§1205 for establishment of the Crystal Springs Watershed Special Resources Management Unit; §180 8, to designate
the Ancient Bristlecone Pine Forest; and §§2103 -2104, to establish the Prehistoric Trackways National Monument.
Other provisions were included in P.L. 113-291 (e.g., §3043 and §3092, designating or establishing units of the
National Park System, and §3062, establishing the Hermosa Creek Special Management Area on FS lands).
9 Examples include P.L. 113-107 and P.L. 113-291, §§3002(c), 3009(b), and 3009(d).
10 Examples include P.L. 113-66, §§2931, 2941, and 2951.
11 Examples include P.L. 109-385 and P.L. 106-113, in a proviso for the Forest Service Land Acquisition account.
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Legislated Withdrawal Variations
Many laws have included the three components of legislated withdrawals essential y in the form
set out in the “Introduction” to this report. However, legislated withdrawals might include
variations on those components, as Congress determines what is appropriate to its objectives for
the parcels at issue, which have varying legal effects. Such variations may include omitting one
or more components, limiting the scope in some way, or specifying future application, as
described below.
Omissions
Some legislated withdrawals have omitted one or more of the three components. For instance, in
designating national scenic areas under FS management, one law omitted the first of the three
components (all forms of entry, appropriation, and disposal under the public land laws),12 as did
provisions of law conveying specified BLM land.13 Legislated withdrawals also have omitted
specific terms or activities from the three components. For example, provisions of law
authorizing and governing disposal of BLM land parcels under specified terms omitted “disposal”
from the first component of the withdrawal language and specified that the withdrawal did not
apply to “sales made consistent with this subsection.”14 Other laws have briefer withdrawal
provisions that omit multiple parts of the three components. For example, some provisions of law
authorizing land withdrawals for military purposes omitted both “entry” and “disposal” under the
first component and “mineral materials” under the third component, among other differences.15
Limitations
In some cases, legislated withdrawals have included al three components of the withdrawal
provision but expressly limited their scope. For instance, some provisions of law that withdrew
lands from al forms of entry, appropriation, and disposal under the public land laws specified
exceptions that al owed for particular disposals.16 Other provisions of law that general y withdrew
lands from mineral leasing authorized the Secretary of the Interior to lease oil and gas resources
that were within a mile of the boundary of the withdrawal area, under specified terms and
conditions.17 Another law specified that the withdrawal would not pertain to particular parcels in
the area.18
Future Applicability
Some legislated withdrawals have specified that provisions applicable to lands currently in
federal ownership also apply to future federal acquisition of lands in the area. For instance,

12 P.L. 111-11, §1104(l).
13 P.L. 113-291, §3092(i).
14 P.L. 111-11, §2601(d).
15 P.L. 113-66, §§2931(a) and 2941(a). The text of the withdrawal provisions is similar, in providing that, subject to
valid existing rights and except as otherwise provided, specified public land (including interests in land) and any lands
within the boundary that become subject to the public land laws are “withdrawn from all forms of appropriation under
the public land laws, including the mining laws, the mineral leasing laws, and the geothermal leasing laws.”
16 P.L. 111-11, §2606(c); P.L. 113-291, §3062(d); P.L. 113-291, §3092(f).
17 P.L. 111-11, §3202(f).
18 P.L. 113-291, §3062(b).
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provisions of one law required that any lands acquired by the federal government within certain
boundaries would be withdrawn as set out for lands already in federal ownership.19 Similarly, a
law establishing a national monument as a unit of the National Park System provided that lands
acquired after enactment for inclusion in the monument would be subject to the withdrawal
provisions set out for federal land within the monument at its establishment.20 As another
example, provisions of a law required that if any rights on the land were relinquished or otherwise
acquired by the federal government after enactment, the land subject to those rights would be
withdrawn under the terms specified for lands in federal ownership as of enactment.21
General Considerations in Determining Meaning
In some cases, it may not be readily apparent what, if any, difference in meaning Congress
intends by variation in the terms and components of legislated withdrawals. For example, it may
be unclear to what extent laws that bar “entry” only in the second component provide for a more
limited withdrawal than laws that also bar entry in the first component.22 Also, for laws that omit
“mineral materials” from the third component,23 it may be unclear whether the terms of the first
and third components of the withdrawal nevertheless would preclude the sale of materials.24
The reasons for omitting particular terms from legislated withdrawals may not be clear from the
text. Some laws might omit terms to protect continued or future land use for these activities ; other
laws might omit the same language because certain activities are not occurring or are unlikely to
occur in the future on the withdrawn land. As an example, for parcels with no history of mineral
development or findings or no evidence of mineral potential, Congress might not see a need to
specify a withdrawal under the mining laws. In these cases, although the parcels might remain
legal y open to mineral development, in practice they might never be used for that purpose based
on the resources on the lands. It is also possible that the omissions were inadvertent. Contrarily,
the omissions may have been intentional because other sources, such as explanatory materials
accompanying the laws, provide specificity and clarity as to the intent of the legislation.
A more complete understanding of a particular legislated withdrawal’s meaning may require
examining sources of information beyond the text of the law. Accordingly, agencies and courts
determine the meaning and legal effect of legislated withdrawals on a case-by-case basis by
examining existing authorities, legislative history, and agency documents.
Existing agency authorities governing the affected parcels could inform the meaning of a
legislated withdrawal. For example, under general agency authorities, BLM and FS lands
general y are open to energy and mineral development, and both agencies have authorities to
convey lands out of federal ownership under certain conditions, as described in the section
entitled “Entry, Appropriation, and Disposal.” In contrast, lands managed by NPS general y are
not open to such development or conveyance out of federal ownership. Thus, a legislated
withdrawal of NPS lands might omit specifying that the parcels are withdrawn from these
activities because other NPS authorities already preclude them. Similarly, it could be useful to

19 P.L. 111-11, §2601(f).
20 P.L. 113-291, §3092(a).
21 P.L. 111-11, §3202(b).
22 As an example of a law with entry only in the second component, see P.L. 111-11, §3202(a).
23 See, for example, P.L. 111-11, §§1204(g) and 3202(a).
24 In conversations with the Congressional Research Service (CRS), BLM staff have indicated that it is clearer to the
agency when laws specifically address mineral materials.
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consult any laws specific to the particular parcels at issue, such as laws establishing affected land
units, which might contain requirements that differ from the authorities general y applicable to an
agency’s lands.
In addition, the legislative history of a legislated withdrawal, including committee report
language, could provide insight as to congressional intent. For example, report language might
contain more specificity than bil text as to the intended meaning of terms and components; the
laws that apply to management of the parcels; and the activities that are continued, limited, or
banned. Though such information is not itself part of the law, it can inform agencies’ and courts’
interpretations of the statutory text.25
Another potential source of information about how certain withdrawals may be interpreted is a
land management plan. Management plans developed by agencies for land units and areas
typical y contain details on the types and locations of al owed activities and thus could be helpful
in assessing the meaning of legislated withdrawal provisions. In some cases, an examination of
agency guidance on withdrawals also could be useful, though the extent to which such guidance
applies to legislated withdrawals is not readily apparent, as discussed in the following section
(“Analysis of Legislated Withdrawal Components”).
Analysis of Legislated Withdrawal Components
This section provides an analysis of the three components of the following example legislated
withdrawal language:
Subject to valid existing rights, [the federal land] is withdrawn from:
(1) all forms of entry, appropriation, and disposal under the public land laws;
(2) location, entry, and patent under the mining laws; and
(3) operation of the mineral leasing, mineral materials, and geothermal leasing laws.26
Information in this section is based on several sources. First, the Congressional Research Service
(CRS) searched laws since the 106th Congress in Congress.gov to identify legislated withdrawals.
Through this search, CRS identified a variety of legislated withdrawals as an il ustrative, rather
than a comprehensive, set of withdrawal laws. Information herein also draws on CRS
conversations with realty experts and other staff of the four major land management agencies in
December 2019 and January 2020, as wel as on earlier conversations with BLM staff.27
In addition, CRS consulted some general authorities governing administrative withdrawals (e.g.,
provisions of FLPMA) and selected agency guidance. However, the extent to which agency
guidance applies to legislated withdrawals is not readily apparent; the guidance may pertain

25 For more information about how courts may use legislative history when interpreting statutes, see CRS Report
R45153, Statutory Interpretation: Theories, Tools, and Trends, by Valerie C. Brannon.
26 See, for example: P.L. 116-9, 133 Stat. 580, 629 (116th Cong.); P.L. 109-94, 119 Stat. 2106 (109th Cong.); P.L. 109-
385, 120 Stat. 2681 (109th Cong.) (providing for valid existing rights in a separate subsection but otherwise identical).
27 CRS conversations with agency staff were held on the following dates: BLM, December 18, 2019; FS, January 13,
2020; National Park Service (NPS), January 22, 2020; and U.S. Fish and Wildlife Service (FWS), January 31, 2020.
Earlier CRS conversations with BLM staff were conducted on various dates during 2018 and 2019. T his report does not
explicitly note each instance in which information presented was derived from consultations with agency staff, though
this is sometimes noted for emphasis. For brevity, text references to agency consultations do not typically denote the
agency or agencies that provided the information.
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primarily or exclusively to administrative withdrawals.28 For instance, regulations applicable to
withdrawals by the Secretary of the Interior under FLPMA note that they “do not apply to
withdrawals that are made by the Secretary of the Interior pursuant to an act of Congress which
directs the issuance of an order by the Secretary.”29 Similarly, FWS withdrawal policies cite
provisions of FLPMA and related regulations on procedures for agencies to submit withdrawal
requests under that law.30 FS guidance on withdrawals appears to focus on withdrawals under
FLPMA and other broad laws.31 NPS policy indicates that when acquisition within a park
boundary is necessary, the agency wil consider various methods, including withdrawal from the
public domain; it does not elaborate on withdrawal policies or processes.32
As noted in the “Introduction,” the legislated withdrawal example language at issue specifies,
“Subject to valid existing rights,” the identified federal land is withdrawn from the specified
components. Thus, the three withdrawal components discussed below this clause al are “Subject
to valid existing rights,” though this is not consistently restated throughout the discussions. An
analysis of the meaning of this terminology is provided in the section of this report entitled
“Interpreting ‘Subject to Valid Existing Rights.’”
Entry, Appropriation, and Disposal Under the Public Land Laws
The first component of the legislated withdrawal language at issue, as set out in the
“Introduction,” specifies that the federal land is withdrawn from (1) all forms of entry,
appropriation, and disposal under the public land laws. This component is analyzed in two parts:
first, the public land laws, and then the entry, appropriation, and disposal.
Public Land Laws
This language general y would bar activities authorized under various public land laws (subject to
valid existing rights). There are numerous public land laws, but no land management agency
maintains a comprehensive list of such laws and the lands to which each law applies, according to
agency staff consulted for this report. Further, it is likely impossible to develop such a list,
because currently there does not appear to be a single definition in law of the term public lands or
a single definition in use by agencies of the term public land law. Moreover, different meanings
may have been used over time, as discussed in this section.33 The absence of a comprehensive list
of public land laws and the lack of a single, consistent definition of public lands over time make

28 As noted, legislated withdrawals are made under the Property Clause of the U.S. Constitution, Article IV, Section 3,
Clause 2. Administrative withdrawals are made under various statutes, e.g., provisions of the Federal Land Policy and
Management Act of 1976 at 43 U.S.C. §1714.
29 43 C.F.R. §2300.0-1(b).
30 FWS, Service Manual, 342 FW 5, Non-Purchase Acquisition, Section 5.9—Withdrawal, at https://www.fws.gov/
policy/342fw5.html.
31 See, for instance, FS, Forest Service Manual 2700, Chapter 2760-Withdrawals, at https://www.fs.fed.us/im/
directives/dughtml/fsm2000.html.
32 NPS, Management Policies 2006, p. 32, at https://www.nps.gov/policy/MP_2006.pdf, and Director’s Order #25:
Land Protection, Section 10.0—Property Acquisition/Relocation Assistance and Section 11.0 —Acquisition Methods, at
https://www.nps.gov/policy/DOrders/DOrder25.htm#Acquisition_Assistance.
33 For instance, one scholar observed that “When first approaching the task, the uninitiated may take comfort in the
label ‘public land law,’ believing that such nomenclature indicates a unified field of law amenable to simple outline. In
reality, however, the term is mere shorthand. Modern ‘public land law’ covers a myriad of individual agency mandates
to manage particular lands and particular resources.” T he scholar further observed that “ as a legal term, however,
‘public lands’ has had different meanings at various times.” See Mansfield, A Primer of Public Land Law, p. 802.
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Withdrawal of Federal Lands: Analysis of a Common Legislated Withdrawal Provision

it chal enging to determine the precise meaning or applicability of this component of legislated
withdrawals.
Public Domain Lands
Historical y, the term public land laws referred to laws providing for disposal of the public
domain, according to some scholars.34 The public domain label was used for those lands that
never left federal ownership. Typical y, these lands were ceded by the original states or obtained
from a foreign sovereign (e.g., by purchase or treaty).35 In contrast, the federal government
usual y obtained acquired lands from a state or individual through exchange, purchase,
condemnation, or gift. Roughly 90% of al federal lands were public domain, with roughly 10%
acquired.36 The distinction in types of lands based on their manner of acquisition has lost some of
its underlying significance today, though different laws stil may apply depending on whether the
lands involved were public domain or acquired.
The term public land laws continues to apply today to public domain lands, according to some
agency staff. Some of these staff also used the term public domain to refer to land currently
managed by BLM. The application to BLM land also is asserted in FWS policy guidance stating
The term ‘public domain land’ has been supplanted by the term “public land,”
defined in FLPMA as any land and interest in land owned by the United States
within the several States and administered by the Secretary of the Interior through
the Bureau of Land Management, without regard to how the United States acquired
ownership.37
In this sense, public domain is used more narrowly to refer to the lands that continue to be
managed by BLM rather than also to lands that have been reserved from the public domain for
particular uses or purposes.38 Throughout U.S. history, various laws and administrative
authorities were used to withdraw lands from the public domain to establish or enlarge land units,
such as national forests (managed by FS) and national wildlife refuges (managed by FWS).
Accordingly, such land units sometimes are referred to as having been reserved from the public
domain.
Land Management Broadly
Some scholars have asserted a seemingly broader interpretation of the term public land law.
According to one scholar, in modern usage, public land law does not indicate a “unified field of

34 David H. Getches, “Managing the Public Lands: T he Authority of the Executive to Withdraw Lands,” Natural
Resources Journal, vol. 22, no. 2 (April 1982), p. 282. Hereinafter referred to as Getches, “ Managing the Public
Lands.” See also Mansfield, “Primer of Public Land Law,” p. 821.
35 An apparently broader definition of public domain lands is contained in BLM’s Public Land Statistics 2019, as
follows: “Original public domain lands that have never left federal ownership; lands in federal ownership that were
obtained in exchange for public domain lands or for timber on public domain lands; one category of public lands.” See
U.S. Department of the Interior, BLM, Public Land Statistics 2019, p. 242.
36 U.S. General Services Administration, Overview of the United States Government’s Owned and Leased Real
Property: Federal Real Property Profile as of Septem ber 30, 2003 , p. 16.
37 FWS, Service Manual, 342 FW 5, Non-Purchase Acquisition, Section 5.9—Withdrawal, at https://www.fws.gov/
policy/342fw5.html.
38 Mansfield, “Primer of Public Land Law,” p. 832. T he definition of public lands in the Federal Land Policy and
Management Act of 1976 (FLPMA) is codified at 43 U.S.C. §1702(e).
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law amenable to simple outline.”39 It “covers a myriad of individual agency mandates to manage
particular lands and particular resources.”40 Under this broader interpretation, the term public
land encompasses diverse land systems managed by different agencies under varying laws.41
Under another broad definition, the term public land laws refers to laws (and regulations)
governing the retention, management, and disposition of the public lands.42 This definition
derives from the Public Land Law Review Commission, established by law in 1964 to “study
existing statutes and regulations governing the retention, management, and disposition of the
public lands.”43 In the establishing statute, Congress outlined the purpose of the commission:
Because the public land laws of the United States have developed over a long period of
years through a series of Acts of Congress which are not fully correlated with each other
and because . . . administration of the public lands and the laws relating thereto has been
divided among several agencies of the Federal Government, it is necessary to have a
comprehensive review of those laws and the rules and regulations promulgated thereunder
and to determine whether and to what extent revisions thereof are necessary.44
The land within the statutory mandate of the Public Land Law Review Commission included not
only BLM lands but also NPS, FS, and FWS lands.45
Entry, Appropriation, and Disposal
A withdrawal from entry,46 appropriation, and disposal general y would bar third parties from
applying to take ownership of the lands or resources on the lands under applicable law and from
obtaining possession of the same.47 It also would preclude the lands from being “appropriated”
for (i.e., used for) a primary purpose other than the one intended by the legislated withdrawal
(subject to valid existing rights), according to agency staff consulted for this report.48 Further,
such a withdrawal typical y would prohibit the transfer of the land to other federal agencies, in
cases where such authority otherwise would exist, and action by the Secretary of the Interior to
take the lands into trust for Indian tribes.49

39 Mansfield, “Primer of Public Land Law,” p. 802.
40 Mansfield, “Primer of Public Land Law,” p. 802.
41 Mansfield, “Primer of Public Land Law,” p. 831.
42 Getches, “Managing the Public Lands,” p. 282.
43 P.L. 88-606, §4.
44 P.L. 88-606, §2.
45 Mansfield, “Primer of Public Land Law,” pp. 802-803.
46 Some former and current laws specifically refer to authority to “enter” federal lands or make “entry” to federal lands
in order to obtain possession of the lands or resources thereon. As an example of a former law, the Homestead Act of
1862 authorized individuals meeting certain qualifications to “ enter” and make “ entry” to public lands in order to settle
on the lands. T he applicant, sometimes referred to as the “entryman,” received title to the lands after a specified period,
providing certain conditions were met. T he text of the statute is at https://uscode.house.gov/statviewer.htm?volume=
12&page=392. Among current laws, the Desert Land Act (43 U.S.C. §321) and the General Min ing Law of 1872 (30
U.S.C. §§22-42) also use the terms.
47 In this sentence and elsewhere in this report, third parties includes individuals, corporations, and certain
governmental entities.
48 As an example, FS lands withdrawn from “appropriation” could n ot later be administratively reserved or classified as
power sites or used for reservoirs under provisions of the Federal Power Act, according to FS staff. Pertinent provisions
of the Federal Power Act are at 16 U.S.C. §818.
49 Information in this paragraph is derived primarily from CRS conversations with BLM and FS staff.
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This language general y would prevent the lands from being conveyed out of (e.g., disposed
from) federal ownership by sale or exchange. Currently, the four major federal land management
agencies have varying degrees of authority to convey lands out of federal ownership, ranging
from no general authority to relatively broad authority. This component of legislated withdrawals
is less likely to affect NPS and FWS than FS and BLM, because NPS and FWS lack general
authority to dispose of lands, though there are exceptions. By contrast, FS has various authorities
to dispose of land, although they are somewhat constrained and not used frequently, and BLM has
relatively broad authority to dispose of land. BLM disposal authorities include exchanges and
sales under FLPMA;50 transfers to other governmental units or nonprofit entities for public
purposes under the Recreation and Public Purposes Act;51 geographical y limited sale authorities,
such as the Southern Nevada Public Land Management Act of 1998;52 and patents under the
General Mining Law of 1872.53 With regard to the latter authority, since FY1995, a series of
annual moratoria on funding for issuing mineral patents have been enacted into law.54 These
moratoria, contained in the annual Interior appropriations laws, in effect have prevented this
means of federal land disposal. The language in this component general y would also ban the
disposal of resources on the lands (such as minerals) and other interests in the lands, which are
something less than full ownership (such as conservation easements).
The terms entry, appropriation, and disposal have lost some of their historical import through the
repeal of certain disposal laws and infrequent use today of others.55 For example, authority to
dispose of public lands under the Homestead Act of 1862 was repealed in 1976 by FLPMA (with
a 10-year extension in Alaska). As another example, desert lands can be disposed under other
laws, though these laws are seldom used because the lands must be classified as available, and
sufficient water rights for settling on the land must be obtained. The Carey Act authorizes transfer
to a state of desert public land for settlement, irrigation, and cultivation, upon application and
meeting certain requirements.56 Relatedly, the Desert Land Act al ows citizens to reclaim and
patent 320 acres of desert public land.57 Though the scope of these terms may have changed over
time, this component continues to restrict certain actions, such as the transfer of land out of
federal ownership where such authority otherwise would exist.
Effect on Surface Uses
Withdrawals from entry, appropriation, and disposal typical y would not bar multiple surface
uses, possibly including recreation, hunting, grazing, and issuance of rights-of-way, among

50 43 U.S.C. §1716, §1713.
51 43 U.S.C. §869.
52 P.L. 105-263, as amended.
53 30 U.S.C. §§22-42. A patent is an instrument by which the federal government conveys title to lands.
54 However, patent applications meeting certain requirements filed on or before September 30, 1994, have been allowed
to proceed.
55 For information on the primary current land disposal authorities of the four major federal land management agencies,
see CRS Report RL34273, Federal Land Ownership: Acquisition and Disposal Authorities, coordinated by Carol
Hardy Vincent .
56 43 U.S.C. §641.
57 43 U.S.C. §321. For information on obtaining desert lands under the Desert Land Act, see the “Q&A on Desert Land
Entries” under the “Desert Land Act” section of the BLM website at https://www.blm.gov/programs/lands-and-realty/
land-tenure/sales-and-exchanges. T he “ Q&A on Desert Land Entries” indicates that the authority applies to desert
public lands in 12 states: Arizona, California, Colorado, Idaho, Montana, Nevada, New Mexico, North Dakota, South
Dakota, Utah, Washington, and Wyoming.
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others. In some cases, the authorities that govern an agency’s lands general y prohibit some of
these uses, such as livestock grazing on NPS and FWS lands. Where an agency has discretionary
authority to permit surface uses, as in the case of BLM and FS for livestock grazing, such
discretionary activities typical y could continue on withdrawn lands, unless otherwise specified.
In other cases, the first component of the text could preclude particular surface issues. The
withdrawal from “entry” in this component of the text, together with the withdrawal from “entry”
under the second component, typical y would prohibit location and entry under the mining laws,
as discussed below. Further, some legislated withdrawals may affect authorized land uses that
Congress considers inconsistent with the purposes of the withdrawal. For instance, a withdrawal
to reserve lands for military use and to transfer administrative jurisdiction to the military could
affect public access for recreation due to public safety reasons. Surface uses also could be
affected by subsequent agency actions. For example, an agency might amend the relevant land
management plan to restrict land uses in order to achieve a broad resource-protection goal of a
particular legislated withdrawal.58
Location, Entry, and Patent Under the Mining Laws
The second component of the legislated withdrawal language at issue, as set out in the
“Introduction,” specifies that the federal land is withdrawn from (2) location, entry, and patent
under the mining laws.
This component of legislated withdrawals general y would prevent the withdrawn lands from
being available for new mining operations (subject to valid existing rights). It primarily would
affect BLM and FS lands, because general laws governing these lands al ow for mineral
development, in contrast with the general laws governing NPS and FWS lands.
Mining of hard-rock minerals on federal lands is governed primarily by the General Mining Law
of 1872 (the Mining Law). The original purposes of the Mining Law were to promote mineral
exploration and development on federal lands in the western United States, offer an opportunity
to obtain title to mines already being worked, and help settle the West. The Mining Law grants
free access (“open to mineral entry”) to third parties to prospect for minerals on open public
domain lands and al ows third parties, upon making a discovery, to stake (or locate) a claim on
the deposit.59 A valid claim entitles the holder to develop the minerals. The Mining Law continues
to provide the structure for much of the western mineral development on public domain lands.60
With evidence of valuable minerals and sufficient developmental effort, the Mining Law al ows
mining claims to be patented, with full title (of surface and mineral rights) transferred to the
claimant upon payment of the appropriate fee. Nonmineral lands used for associated mil ing or
other processing operations also can be patented.61 Patented lands may be used for purposes other
than mineral development.62

58 Information in this section is derived from conversations between CRS and BLM staff in 2018 and 2019.
59 T he terms open to mineral entry and locate typically are used by BLM.
60 30 U.S.C. §§22-42.
61 30 U.S.C. §42.
62 However, as noted above, since FY1995, appropriations laws have contained annual moratoria on funding for issuing
mineral patents under the general mining laws. Patent applications meeting certain requirements filed on or before
September 30, 1994, have been allowed to proceed. T he most recent annual mining patent moratorium is contained in
the Further Consolidated Appropriations Act, 2020 (P.L. 116-94), Division D, §404.
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The Mining Law is considered a nondiscretionary agency authority. That is, BLM lacks general
discretion to reject a claim to valuable minerals where the claimant complies with the terms of
law. In this way, the Mining Law differs from major laws affected by components one and three
of legislated withdrawals.63
Withdrawals from location and entry under the mining laws typical y would not affect various
surface uses of the lands, which might include recreation, hunting, and grazing, among others,
depending on the general authorities that govern the surface lands. However, subsequent agency
actions, such as amendments to land management plans, could affect surface uses, as noted
above.
Operation of the Mineral Leasing, Mineral Materials, and
Geothermal Leasing Laws
The third component of the legislated withdrawal language, as set out in the “Introduction,”
specifies that the federal land is withdrawn from (3) operation of the mineral leasing, mineral
materials, and geothermal leasing laws.
This component general y would prevent the withdrawn lands from being available for new
mineral leasing, sale of mineral materials, and geothermal leasing (al subject to valid existing
rights). It would affect mainly BLM and FS lands because the main laws governing these
activities primarily apply to these agencies. These laws—the Mineral Leasing Act of 1920
(MLA), the Materials Act of 1947, and the Geothermal Steam Act of 1970—are discussed below.
Moreover, general laws governing BLM and FS al ow for multiple uses, including energy
development, in contrast to the general laws governing NPS and FWS lands.64
As in the case of withdrawals under the Mining Law, withdrawals from mineral leasing, sale of
mineral materials, and geothermal leasing typical y would not affect multiple uses of the surface
lands. However, subsequent agency actions, such as amendments to land management plans,
could affect surface uses, as noted above.
Mineral Leasing Act of 1920
The third component of legislated withdrawals general y would prevent the withdrawn lands from
being available for new mineral leasing (subject to valid existing rights). The MLA primarily
governs the development of leasable minerals (e.g., oil, gas, coal, and certain agricultural
minerals) on federal lands.65 Under the MLA, the Secretary of the Interior, through the BLM,
leases subsurface rights on federal lands (general y those under the jurisdiction of BLM and FS)
that contain fossil fuel deposits, with the federal government retaining title to the lands. The MLA
authorizes both competitive and noncompetitive bidding processes for oil and gas exploration and
production leases.

63 For instance, agencies with land disposal authority have general discretion as to whether to exercise their conveyance
authority upon application by a prospectiv e purchaser.
64 Although energy development is not a general use of NPS and FWS lands, there are exceptions. For instance, for
information on oil and gas activities on FWS lands, see CRS Report R45192, Oil and Gas Activities Within the
National Wildlife Refuge System , by R. Eliot Crafton, Laura B. Comay, and Marc Humphries.
65 30 U.S.C. §181.
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The Materials Act of 1947
The third component of legislated withdrawals general y would prevent the withdrawn lands from
being available for new disposal of materials on public lands (subject to valid existing rights).
The primary law at issue, the Materials Act of 1947 (as amended),66 gave the Secretary of the
Interior and the Secretary of Agriculture authority to dispose of mineral materials including—but
not limited to—sand, stone, gravel, pumice, and clay, and vegetative materials including—but not
limited to—yucca, manzanita, mesquite, cactus, timber, and other forest products.67 The law
pertains to lands where the disposal of such mineral and vegetative materials otherwise is not
expressly authorized by law, including the mining laws; is not expressly prohibited by law; and
would not be detrimental to the public interest.68 The law general y requires payment of
“adequate compensation” for the materials, and it requires the pertinent Secretary to dispose of
materials to the highest qualified bidder after advertising and other public notices. The law
contains exceptions, including authorization for the pertinent Secretary to permit federal, state,
and local governmental entities and not-for-profit entities to remove materials without charge
under certain circumstances.
Geothermal Steam Act of 1970
The third component of legislated withdrawals also general y would prevent the withdrawn lands
from being available for new geothermal leasing (subject to valid existing rights). The primary
law governing geothermal energy development on federal lands is the Geothermal Steam Act of
1970.69 The law sets out provisions governing the issuance and administration of geothermal
steam leases. Under the law, the Secretary of the Interior, through BLM, authorizes leases on
federal lands (general y lands under BLM and FS jurisdiction) for geothermal exploration and
development. This law (and related regulations) governing geothermal steam leasing and
administration provide for principles and processes that are similar to those for oil and natural gas
leasing on federal lands under the MLA. For instance, the Geothermal Steam Act, like the MLA,
authorizes both competitive and noncompetitive leasing processes.
Interpreting “Subject to Valid Existing Rights”
As noted in the “Introduction,” Congress general y makes legislated withdrawals “subject to valid
existing rights.”70 Congress general y withdraws public lands “to prevent the initiation of new
claims” rather than to destroy “rights theretofore fairly earned.”71 By including the phrase
“subject to valid existing rights,” Congress protects third-party property interests (e.g.,
ownership) in withdrawn federal land.72 Though commonly used, the phrase has no universal

66 30 U.S.C. §§601-604.
67 In this context, the authority to “dispose of” mineral materials means authorization for the “removal of” mineral
materials from the land.
68 30 U.S.C. §601.
69 30 U.S.C. §§1001 et seq.
70 See, for example: P.L. 116-9, 133 Stat. 580, 629 (116th Cong.); P.L. 109-94, 119 Stat. 2106 (109th Cong.); P.L. 109-
385, 120 Stat. 2681 (109th Cong.) (prov iding for valid existing rights in a separate subsection but otherwise identical).
71 Executive Withdrawal Order of November 26, 1934, as Affecting T aylor Grazing Act and Other Prior Legislation, 55
Interior Dec. 205, 210 (1935) [hereinafter 1935 Solicitor Opinion] (citing Williams v. Brening, 51 Pub. Lands Dec. 225
(1925) (on reh’g)).
72 See, for example, Jan G. Laitos & Richard A. Westfall, Government Interference with Private Interests in Public
Resources, 11 HARV. ENVTL. L. REV. 1, 6-9 (1987).
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definition or agreed-upon interpretation.73 Instead, as discussed in more detail in this section,
courts and agencies have interpreted the phrase on a case-by-case basis in light of the purpose and
structure of the law in which it appears.74 Furthermore, third parties may have obtained their
“valid existing rights” under any number of current or former laws that created avenues for
obtaining interests in federal land.75 As such, the examples of “existing rights” this report
provides are il ustrative rather than comprehensive.76
When Congress enacts legislated withdrawals “subject to valid existing rights,” any existing
rights remain in effect after the withdrawal. In some cases, the government may acquire or “take”
certain rights to serve the purpose of the withdrawal. The federal government has authority to
take private property for public uses through its eminent domain powers.77 The Takings Clause of
the U.S. Constitution limits this power by providing that private property cannot “be taken for
public use, without just compensation.”78 As described further below in “Rights,” however, some
valid existing rights may not qualify as property interests that require compensation under the
Takings Clause.79
Alternatively, legislated withdrawals may al ow federal agencies to acquire valid existing rights
through voluntary transactions, such as purchase or exchange.80 The relevant federal agency may
have preexisting statutory authority to acquire such rights.81 If the agency does not have that
authority or the authority is limited, Congress may consider providing such authority in the
legislated withdrawal. Congress also may consider appropriating funds for any such acquisitions.

73 1935 Solicitor Opinion, supra note 71, at 210-11; see also Laitos & Westfall, supra note 71, at 19-22.
74 See, for example, Laitos & Westfall, supra note 71, at 19-22.
75 See, for example, 1935 Solicitor Opinion, supra note 71, at 210-11(“It is hardly practicable to give a precise or
general definition of the meaning of ‘existing valid rights,’ as used in the savings clause of the said Executive Order.
T he circumstances of each particular case will have to be considered in applying that provision.”).
76 While some examples discussed in this report involve laws that are no longer in effect, rights obtained under those
laws still could be “valid existing rights” even after the law’s expiration or repeal. Additionally, those examples show
the historical understanding of “ valid existing rights” and demonstrate legal principles that apply to similar laws that
currently are in effect.
77 United States v. Jones, 109 U.S. 513, 518-19 (1883).
78 U.S. Const. amend. V; Jones, 109 U.S. at 518-19. See also, for example, Horne v. Dep’t of Ag., 576 U.S. 350, 357-
58 (2015) (“There is no dispute that the ‘classic taking [is one] in which the government directly appropriates private
property for its own use. Nor is there any dispute that, in the case of real property, such an appropriation is a per se
taking that requires just compensation.” (citations omitted) (emphasis in original)); Meridian Land & Mineral Co. v.
Hodel, 843 F.2d 340, 346-47 (9th Cir. 1988) (noting that during congressional debate, Congressman Udall objected to
an amendment “because it takes from the bill a statement that valid legal rights should be preserved,” which he did not
think Congress “should do without paying compensation under the fifth amendment”).
79 T he various constitutional considerations under the T akings Clause for “valid existing rights” are beyond the scope
of this report. For more information on the T akings Clause, see CRS, Amdt5.5 T aking Private Property for Public Use,
Constitution Annotated (2020), https://constitution.congress.gov/browse/amendment -5/.
80 See, for example, P.L. 96-290, 94 Stat. 607 (1980) (amending an act establishing a wildlife refuge to include that the
Secretary of the Interior “may acquire lands and waters or interests therein . . . within the boundaries of the refuge by
donation, purchase with donated or appropriated funds, or exchange”); P.L. 93-402, 88 Stat. 801 (1974) (“The
Secretary may acquire by donation, purchase with donated or appropriated funds, or exchange, such lands and waters
and interests therein (including in-holdings) that are adjacent to the [lands and waters reserved for the Great Dismal
Swamp National Wildlife Refuge] and are within the area known as the Great Dismal Swamp . . . as he determines to
be suitable to carry out the purposes of this Act.”).
81 For instance, the Secretary of the Interior has authority to acquire interests in lands under FLPMA, 43 U.S.C. §1715,
(acting through BLM), the National Wildlife Refuge System Administration Act, 16 U.S.C. §668dd(b), (acting through
FWS), and the Migratory Bird T reaty Act , 16 U.S.C. § 715d (acting through FWS).
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Defining “Valid Existing Rights”
As used in legislated withdrawals, a “valid existing right” is a third-party (i.e., nonfederal)
interest in federal land that the relevant federal agency cannot terminate or unduly limit.82 To have
a valid existing right, the third party must
 have met the requirements under the relevant law to obtain a property interest in
the land (i.e., the property interest must be valid);
 have had a protectable interest before the United States withdraws the land (i.e.,
the property interest was existing at the time of withdrawal);83 and
 possess a property interest (or in some cases a possessory interest) in the land that
constitutes a right for purposes of withdrawals (i.e., it must be a right).84
Valid
The validity of the interest depends on whether the third party has met the requirements of the
law under which it al eges to have secured the property interest. First, the interest itself must be
legitimate (i.e., supported by evidence of the factual basis required by the relevant statute). For
example, to secure a mining claim as a valid right under the mining laws, a claimant must
demonstrate that they have made a “valid discovery” of a valuable mineral deposit that can be
extracted and marketed.85
Second, the third party must have complied with any procedural requirements set out in statute.86
The “steps required to secure the right” similarly depend on the law on which the interest is
based. For example, under the General Mining Law of 1872, to be eligible for exclusive
possession and enjoyment (i.e., development) of a mineral deposit, a claimant must (1) make a
discovery of a mineral vein, lode, or ledge and (2) properly stake (or locate) the claim.87 To
receive a land patent (i.e., title to the land) from the Secretary of the Interior for the land on which
a valuable mineral discovery is located, the claimant must perform a requisite amount of work
developing the claim and pay a fee.88 Similarly, before purchasing up to 80 acres of public land as

82 See, for example, T he Bureau of Land Management Wilderness Review and Valid Existing Rights, M-36910
(Supp.), 88 Interior Dec. 909, 912 (1981) [hereinafter 1981 Solicitor Opinion](“‘[V]alid existing rights’ are th ose rights
short of vested rights that are immune from denial or extinguishment by the exercise of secretarial discretion.”); Laitos
& Westfall, supra note 71, at 26.
83 As described below in “ Existing,” certain property interests may be allowed to relate back to the date the claimant
first occupied the land before a withdrawal and be considered “existing” even if the right is not secured (i.e., the
process for obtaining the right is not complete) until after the withdrawal.
84 See, generally, Laitos & Westfall, supra note 71. Property interests versus possessory interests are discussed below
in “Rights.”
85 See, e.g., Vane Minerals v. United States, 116 Fed. Cl. 48, 55-59 (2014); Skaw v. United States, 13 Cl. Ct. 7, 28
(1987), aff’d 847 F.2d 842 (Fed. Cir. 1988); see also 43 C.F.R. § 3809.00(a). A valid discovery “ occurs when the
claimant demonstrates that a reasonably prudent person would be justified in expending further effort to develop the
claim.” Vane Minerals, 116 Fed. Cl. at 55. T he claimant also must “establish that ‘the mineral can be extracted,
removed, and marketed at a profit.’” Id. at 56 (quoting United States v. Coleman, 390 U.S. 599, 602 (1968)).
86 Russian-American Packing Co. v. United States, 199 U.S. 570, 575 (1905) (“[T]he mere settlement upon public
lands without taking some steps required by law to initiate the settler’s right thereto, is wholly inoperative as against the
United States.”).
87 30 U.S.C. §26.
88 30 U.S.C. §§28-29. However, since FY1995, a series of annual moratoria on funding for issuing mineral patents has
been enacted into law. See, e.g., P.L. 116-94, Div. D, tit. IV, § 404, 133 Stat. 3013 (2019). Patent applications filed on
or before September 30, 1994, that met certain requirements have been allowed to proceed.
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a trade and manufacturing site, the Trade Manufacturing and Site Act required the claimant to file
a notice of location to claim of “unoccupied, unimproved, and unappropriated” land and apply to
purchase the claim within five years of the notice.89 General y, a third party must complete the
steps required by law to secure a valid “valid existing right” in federal land.
Existing
The second requirement for a third party to have a “valid existing right” is that the property
interest existed at the time of withdrawal.90 Depending on the legal basis for the right, a third
party obtains an interest in federal land either (1) once they meet the statutory requirements,
without the federal agency having to act, or (2) when the federal agency exercises its discretion to
grant the property interest after the third party meets the relevant statutory requirements.91 Third
parties claiming property interests under laws that do not require the federal agency to grant the
interest have an existing property interest as soon as they meet the law’s requirements.92 For
example, a claimant under federal mining laws is entitled to the claim once they complete the
statutory steps described above (discovery and location).93 Whether the Secretary of the Interior
has issued a land patent to transfer title to the claimant does not affect the claimant’s right to the
land; once federal mining law requirements are met, the property right “vests” (i.e., ownership is
transferred to the claimant) and the right exists.94 In some cases, the claimant need not complete
al of the required steps before the withdrawal to obtain an existing right. If the law al ows claims
to relate back to occupancy (i.e., be back-dated to when the claimant first occupied the land),
claimants may have existing rights if they occupied the land before withdrawal and ultimately
complete the remaining steps required by law.95
Other laws provide that a claimant’s interest in federal land only becomes a valid existing right
once the Secretary has acted to make it valid.96 For example, third parties acquire oil and gas
leases when the Secretary of the Interior approves their application.97 Although courts and
agencies have recognized these leases as valid existing rights in various contexts, they have not
recognized applications for oil and gas leases or other leasehold interests in federal land.98

89 43 U.S.C. §687a-1, repealed effective Oct. 21, 1986, P.L. 94-579, title VII, § 703(a) (1976); 43 C.F.R. §2562.1
(1983).
90 1981 Solicitor Opinion, supra note 82 at 911 (“They are property interests rather than mere expectancies.”).
91 Id. at 912; Laitos & Westfall, supra note 71, at 25-36.
92 Laitos & Westfall, supra note 71, at 12-13, 16-17.
93 30 U.S.C. §§26; see also 1981 Solicitor Opinion, supra note 82, at 912.
94 Black’s Law Dictionary (11th ed. 2019) (defining vest to mean “to confer ownership (of property) on a person). See,
for example, Wyoming v. United States, 255 U.S. 489, 501, 508 -09 (1921); Kern Oil Co. v. Clarke, 30 Pub. Lands Dec.
550, 550 (1901). During this time, the United States merely holds the title to the land in trust on behalf of the claimant
until the land patent (i.e., the official document granting title) issues. See, for example, Wyom ing, 255 U.S. at 501-02.
Note, however, that since FY1995, a series of annual moratoria on funding for issuing mineral patents has been enacted
into law. See, e.g., P.L. 116-94, Div. D, tit. IV, § 404, 133 Stat. 3013 (2019). Patent applications filed on or before
September 30, 1994, that met certain requirements have been allowed to proceed.
95 James Milton Cann, 16 IBLA 374 (1974); cf. Ramstad v. Hodel, 756 F.2d 1379, 1382-86 (9th Cir. 1985).
96 See, for example, James v. Canon, 84 Interior Dec. 176, 181 (1977) (affirming that lease offerors have no right to a
lease).
97 30 U.S.C. §226.
98 Compare Union Oil Co. of Cal. v. Morton, 512 F.2d 743, 750 -51 (9th Cir. 1975) (recognizing that an oil and gas
lease is a property right) with James v. Canon, 84 Interior Dec. 176, 181 (1977) (affirming that lease offerors have no
right to a lease). See also Miller v. Udall, 317 F.2d 573, 576 (D.C. Cir. 1963) (“ [A] lthough filing an offer is a necessary
condition or prerequisite to the issuance of a lease, it does not give the applicant a valid existing right to a lease .”);
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Courts and agencies have at times concluded that a third party has a valid existing right despite
not having established an interest by law before the land is withdrawn.99 The Solicitor of the
Department of the Interior has offered “an expansive interpretation of ‘existing valid rights’ in the
context of withdrawal”100 that includes “al prior valid applications for entry, selection, or
location, which were substantial y complete at the date of the withdrawal” and “[c]laims under
the Color of Title Act of December 22, 1928.”101 A court or agency also may recognize a valid
existing right, even if the claimant is not legal y entitled to it, because it would be equitable (i.e.,
consistent with the principles of justice).102
Rights
Not al uses of or interests in federal land qualify as valid existing “rights.” The third party
usual y must have obtained a property interest in the land to have a right; merely using the land
general y is insufficient to establish a valid existing right.103 To determine whether the asserted
interest qualifies as a right, courts and agencies examine the law authorizing the interest and the
withdrawal law.104 Courts and agencies have recognized a number of property interests as
protected rights, such as entitlements to land patents under mining laws and entry-based laws
such as the Homestead Acts and the Trade and Manufacturing Site Act;105 land grants to states;106
rights-of-way;107 and mineral leases.108
Courts and agencies also have deemed certain possessory interests protected, the most common
example being perfected but unpatented mining claims.109 However, they have declined to
recognize other possessory interests as valid existing rights.110 Courts and agencies have generaly

1981 Solicitor Opinion, supra note 82, at 912 (describing when valid existing rights arise); Laitos & Westfall, supra
note 71, at 12-19 (describing how courts and agencies have treated different types of interests in property).
99 1935 Solicitor Opinion, supra note 71, at 210.
100 Ramstad, 756 F.2d at 1385.
101 1935 Solicitor Opinion, supra note 71, at 210. T he Color of T itle Act provides a means for BLM to resolve certain
private party claims on public lands through conveyance of patents. See 43 U.S.C. §1068.
102 See, for example, Ramstad, 756 F.2d at 1383-86; 1935 Solicitor Opinion, supra note 71, at 210-11; Black’s Law
Dictionary (11th ed. 2019) (defining equitable as “Just; consistent with princip les of justice and right”).
103 1981 Solicitor Opinion, supra note 82, at 911.
104 Id. at 912.
105 See, for example, Stockley v. United States, 260 U.S. 532, 536-42 (1922); Ramstad v. Hodel, 756 F.2d 1379, 1380-
81 (9th Cir. 1985).
106 Wyoming v. United States, 255 U.S. 489, 501-02 (1921).
107 Sierra Club v. Hodel, 848 F.2d 1068, 1085-86 (10th Cir. 1988), overruled on other grounds by Village of Los
Ranchos de Albuquerque v. Marsh, 956 F.2d 970 (10th Cir. 1992). See also FLPMA §701(a) & (h), P.L. 94-579, Title
I, §102, 90 Stat. 2744 (1976) (codified at 43 U.S.C. 1701 note).
108 See, for example, Skaw v. United States, 740 F.2d 932, 935-36 (Fed. Cir. 1984).
109 United States v. Locke, 471 U.S. 84, 88 (1985); Best v. Humboldt Placer Mining Co., 371 U.S. 334, 335 -37 (1963);
Wilbur v. United States ex rel. Krushnic, 280 U.S. 306, 316-17 (1930); Laitos & Westfall, supra note 71, at 15-16. A
mining claim is perfected but unpatented when the claimant has complied with all the requirements of the law but the
United States has not issued a land patent to transfer title. See, for example, Wilbur, 280 U.S. at 316-17; Belk v.
Meagher, 104 U.S. 279, 283-84 (1881).
110 Wisenak, Inc. v. Andrus, 471 F. Supp. 1004, 1009 (D. Alaska 1979) (declining to recognize the doctrine of pedis
possessio, which protects prospectors from encroachment by other explorers, as creating valid existing rights); Laitos &
Westfall, supra note 71, at 18.
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not recognized permits, such as grazing permits, as protected property rights for purposes of
interpreting withdrawals, absent a specific provision in the withdrawal law or order.111
“Subject to” Valid Existing Rights
Once a third party establishes a “valid existing right” in withdrawn federal land, the relevant
federal agency must determine how to manage the land “subject to” that right.112 Valid existing
rights limit the federal agency’s ability to manage withdrawn land pursuant to the directives in the
withdrawal legislation.113 For example, under FLPMA, the Secretary of the Interior must manage
any areas being considered for wilderness designation “so as not to impair the suitability of such
areas for preservation as wilderness.”114 However, FLPMA’s savings clause requires the
Secretary to carry out actions under FLPMA—including wilderness management—“subject to
valid existing rights.”115 As the Solicitor for the Department of the Interior recognized in a 1981
opinion, this savings clause limits prevents the Secretary from applying the non-impairment
standard in a way that “would prevent the exercise of any ‘valid existing rights.’”116
Valid existing rights are not absolute rights that cannot be managed or limited.117 The nature of
the right depends on the law that created the right, the terms of any agreement involved (e.g., an
oil and gas lease), and how the relevant federal agency exercises its discretion.118 The Secretary
of the Interior has taken the position that federal agencies may regulate valid existing rights
provided that they do not regulate “to the point where the regulation unreasonably interferes with
enjoyment of the benefit of the right.”119
Identifying Valid Existing Rights
Due to the large number of public land laws and natural resource laws under which parties may
have obtained rights to federal land, and the variability in how parties obtain a “valid existing”
right under each law, federal agencies or courts necessarily must analyze “valid existing rights”
on a case-by-case basis.120 The particular right retained by a party also may depend on various

111 Cf. United States v. Fuller, 409 U.S. 488, 494 (1973) (“ The provisions of the T aylor Grazing Act . . . make clear the
congressional intent that no compensable property might be created in the permit lands themselves as a result of the
issuance of the permit.”); LaRue v. Udall, 324 F.2d 428, 431 (D.C. Cir. 1963) (“ By no means should [a grazing permit
provision of the T aylor Grazing Act] be construed as providing that, by maintaining a lien o n his grazing unit, a
permitee may also create and maintain a vested interest therein which will prevent the United States from exchange [the
land].”); Bradshaw v. United States, 47 Fed. Cl. 549, 553 (Fed. Cl. 2000) (“[N]either the grazing permit, nor the
historical grazing preference is a compensable interest . . . .”); see also Leigh Raymond, Viewpoint: Are Grazing Rights
on Public Lands a Form of Private Property? , 50 J. RANGE MGMT. 431, 431-36 (1997).
112 1981 Solicitor Opinion, supra note 82, at 912-13.
113 Id. at 913.
114 43 U.S.C. §1782(c).
115 43 U.S.C. 1701 note.
116 1981 Solicitor Opinion, supra note 82, at 911.
117 Id. at 912 (citing Best v. Humboldt Placer Mining Co., 371 U.S. 334 (1963); Continental Oil Co. v. United States,
184 F.2d 802 (9th Cir. 1950)).
118 See id.
119 Id. at 913-14.
120 See, for example, id. at 912 (“T hus, it is not possible to identify in the abstract every interest that is a valid existing
right; the question turns upon the interpretation of the applicable statute and the nature of the rights conveyed by
approval of an application.”). Conversations with staff at BLM, FS, FWS, and NPS confirmed that the agencies
generally determine the valid existing rights that apply to a particular withdrawal on a case-by-case basis. CRS held
conversations with agency staff specifically to obt ain information for this report on the following dates: BLM,
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other factors, including the site-specific conditions of the property.121 The agencies rely primarily
on master plats of public domain land units that BLM maintains, which track awarded leases,
locations, entries, rights-of-way, easements, and other property interests. The agencies also may
conduct independent title searches. Some agency regulations provide procedures for parties to
obtain valid existing rights determinations under certain statutes.122 Claimants may chal enge
“valid existing rights” determinations in administrative proceedings before the agency with
jurisdiction over the land, if the agency so provides, or in court.123
Summary of Analysis
In exercise of its authority over federal lands, Congress considers and enacts legislation to
withdraw lands from management under various laws. Legislated withdrawals often have
common goals, components, and protections. A common goal is to preclude the lands from being
used for certain purposes to foster other particular purposes or values. Common components
include the removal of the affected parcels from operation under one or more categories of law,
namely public land laws, mining laws, and/or mineral leasing laws. Common protections pertain
to valid existing rights, to prevent termination or limitation of third-party property interests
following the withdrawal. Though legislated withdrawals have much in common, Congress has
enacted variations in their components and terms. These variations enable Congress to determine
the appropriate management for the lands to reach its desired objectives.
Determining the meaning and effect of legislated withdrawals can be chal enging. For example,
there are numerous public land laws, but no single, consistent definition of this term or
comprehensive list of such laws and the lands to which each law applies. Further, there are a large
number of laws under which third parties may have obtained rights to federal land. Accordingly,
agencies and courts determine the meaning and effect of legislated withdrawals on a case-by-case
basis. To enhance clarity of intent, Congress can provide specifications in the text of the
withdrawal laws and in accompanying explanatory documents.
Though legislated withdrawals are general y made subject to valid existing rights, Congress may
provide for any such rights—or other property interests within the withdrawal boundaries—to be
acquired through the power of eminent domain (with just compensation) or voluntary transactions
such as purchases, donations, or exchanges. When enacting a legislated withdrawal, Congress
may consider whether the purposes of the withdrawal may be served by al owing the relevant
federal agency to pursue such acquisitions.

December 18, 2019; FS, January 13, 2020; NPS, January 22, 2020; and FWS, January 31, 2020. For brevity, text
references to agency consultations do not typically denote the agency or agencies that provided the information.
121 See, for example, 1981 Solicitor Opinion, supra note 82, at 913.
122 See, for example, 30 C.F.R. §761.16 (providing for valid existing rights determinations under surface mining laws);
36 C.F.R. §§292.63, 292.64 (providing for valid existing rights determinations for the Smith River National Recreation
Area); Vane Minerals v. United States, 116 Fed. Cl. 48, 57-59 (2014) (describing agency valid existing rights
determination procedures for mining claims).
123 See, for example, Shepley v. Cowan, 91 U.S. 330, 338 (1876); Kern Oil Co. v. Clarke, 30 Pub. Lands Dec. 550, 550
(1901).
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Withdrawal of Federal Lands: Analysis of a Common Legislated Withdrawal Provision

Author Information

Carol Hardy Vincent
Erin H. Ward
Specialist in Natural Resources Policy
Legislative Attorney

Acknowledgments
Retired CRS Specialist Marc Humphries made valuable contributions to this report pertaining to the
operation of the mineral leasing, mineral materials, and geothermal leasing laws.

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
shared staff to congressional committees and Members of Congress. It operates solely at the behest of and
under the direction of Congress. Information in a CRS Report should n ot be relied upon for purposes other
than public understanding of information that has been provided by CRS to Members of Congress in
connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not
subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in
its entirety without permission from CRS. However, as a CRS Report may include copyrighted images or
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