Fitzgerald Living Trust v. U.S.

Citation460 F.3d 1259
Decision Date30 August 2006
Docket NumberNo. 04-16149.,04-16149.
PartiesThe FITZGERALD LIVING TRUST, Plaintiff-Appellant, v. UNITED STATES of America; Mike Johanns, Secretary of Agriculture; Dale N. Bosworth, Chief, United States Forest Service; United States Forest Service; Harv Forsgren, Regional Forester, Region III; and Elaine Zieroth, Forest Supervisor, Apache-Sitgreaves National Forests, Defendants-Appellees.<SMALL><SUP>*</SUP></SMALL>
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Joel Spector (argued) and Alison Roberts (on the briefs), Mountain States Legal Foundation, Lakewood, CO, for the plaintiff-appellant.

Matthew J. Sanders, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C., for the defendants-appellees.

Appeal from the United States District Court for the District of Arizona; David K. Duncan, Magistrate Judge, Presiding. D.C. No. CV-02-00069-DKD.

Before: BERZON, RAWLINSON, and CONSUELO M. CALLAHAN, Circuit Judges.

CALLAHAN, Circuit Judge:

The Fitzgerald Living Trust challenges the district court's summary judgment in favor of the Secretary of the United States Department of Agriculture, the United States Forest Service and individual Forest Service officials ("the Forest Service"). We must decide the nature of the Trust's right of access over a national forest road, and whether the Forest Service's proposed statutory easement, providing the Trust with access over the road, is reasonable.

I

In 1983, Raymond and Nancy Fitzgerald purchased the O'Haco Cabins Ranch, a twenty-eight acre cattle ranch located in northern Arizona approximately fifty miles southwest of Winslow. The Fitzgeralds maintain a residence on the property and have used and continue to use the ranch as a base camp for their cattle grazing operations in the adjacent Sitgreaves National Forest.1 The property contains a house, with no electricity or generator, and a water source.

In 1920, President Wilson granted the O'Haco Cabin Ranch property to Stelzer Tillman pursuant to the 1862 Homestead Act. Act of May 20, 1862, ch. 75, 12 Stat. 392-93 (1862) (codified at 43 U.S.C. §§ 161-284) (repealed 1976). The patent transferred the tract of land "with the appurtenances thereof." When the property was surveyed in 1916, it contained simple improvements—a two-room log dwelling, a log and dirt root cellar, two pole corrals, and a well. The survey also noted the existence of a nine-mile rough trail from the property leading to a forty-six-mile wagon road to Winslow. At the time the United States granted the O'Haco Cabins Ranch to Tillman, the property was surrounded by the Sitgreaves National Forest or by lands owned by third parties. When Tillman obtained the property, he accessed it by crossing the national forest or land owned by third parties.

When the Fitzgeralds purchased the O'Haco Cabins Ranch in 1983, the property was completely surrounded by the Sitgreaves National Forest. There were several access routes to the property through the national forest. After the Fitzgeralds purchased the ranch, the Forest Service closed all motorized access to the property except for the primary access route, Forest Development Road 56B ("FDR 56B"). Prior to the spring of 1986, the Forest Service never attempted to restrict the Fitzgeralds' or their predecessors-in-interest's use of FDR 56B. In the spring of 1986, however, the Forest Service asked the Fitzgeralds to apply for a "special use permit" under the Federal Land Policy Management Act ("FLPMA"), 43 U.S.C. §§ 1701-1785, to continue using the road.2 The request was made pursuant to the Forest Service's determination that FDR 56B was no longer needed for public use and pursuant to its program of having all uses under permit. The Fitzgeralds applied for the permit but refused to accept it because they felt that they had a legal right to access their property without executing any permit.

In 1988, based on a policy change, the Forest Service offered the Fitzgeralds a "private road easement" under FLPMA in lieu of the special use permit. The Fitzgeralds refused the statutory easement as well. The Regional Forester closed FDR 56B to motorized vehicles, and, in 1993, the Chief of the Forest Service upheld the road closure decision. The Fitzgeralds filed an earlier lawsuit challenging the road closure and seeking to quiet title to a common law easement over FDR 56B, but the case was dismissed as moot when the proposed easement expired.3

In January, 2000, the Fitzgeralds submitted a new application to the Forest Service for use of FDR 56B. The Forest Service prepared a thirty-year private road easement with the following notable conditions:

1. The Fitzgeralds were required to pay the fair market value for the easement, set at $114.31 annually;

2. The Forest Service reserved the right to terminate the easement if it decided that the road would not remain private, provided it replace the easement with a comparable easement; and

3. The Forest Service reserved the right to "suspend, revoke, or terminate" the easement pursuant to the Rules of Practice Governing Formal Adjudicatory Administrative Proceedings instituted by the Secretary of Agriculture.4

The Fitzgeralds did not accept this easement and instead filed suit under the Quiet Title Act, 28 U.S.C. § 2409a, and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706. In their complaint, the Fitzgeralds alleged, inter alia, the following: (1) they have an easement by necessity, an implied easement under the Homestead Act, and an express easement over FDR 56B; and (2) the Forest Service's issuance of the FLPMA easement is arbitrary and capricious because it restricts their common law rights of access and it deprives them of their statutory right of access under the Alaska National Interest Lands Conservation Act, 16 U.S.C. § 3210(a) ("ANILCA"),5 and their right to a permanent easement under the National Forest Roads and Trails Act ("NFRTA"), 16 U.S.C. §§ 532-538.

The district court granted summary judgment in favor of the Forest Service, holding that the Forest Service has the statutory authority under FLPMA and ANILCA to impose restrictions on a private landowner's ingress and egress over national forest land and that the unrestricted use of FDR 56B for many years did not trump this authority. The district court concluded that the easement's restrictions were reasonable, and that the Forest Service did not abuse its discretion by offering the Fitzgeralds an easement under FLPMA and not pursuant to NFRTA.

While the district court held that any common law rights to an easement were preempted by statute, citing to Adams v. United States (Adams II), 255 F.3d 787, 794 (9th Cir.2001) (holding that "common law [easement] claims are preempted by ANILCA and FLPMA where ... the United States owns the servient estate for the benefit of the public"), it also reached the merits of the Fitzgeralds' common law claims. The court concluded that an easement by necessity did not exist because FLPMA and ANILCA grant the Fitzgeralds access to their property, obviating the necessity requirement for such an easement. Moreover, it held that an implied easement did not exist because the Fitzgeralds' right of access was clearly expressed in those statutes, and, assuming arguendo that an express easement was granted based on the 1920 patent language, it would still be subject to Forest Service regulation.

The Fitzgeralds appealed.6 We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

II

This court reviews the district court's grant of summary judgment de novo. Buono v. Norton, 371 F.3d 543, 545 (9th Cir.2004); Universal Health Servs. Inc. v. Thompson, 363 F.3d 1013, 1019 (9th Cir. 2004). We must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir.2004).

III

The Fitzgeralds argue that they have a common law easement by necessity over FDR 56B, an easement implied from the language contained in the Homestead Act, and an express easement granted by the language of the 1920 land patent, and because these easements establish preexisting rights of access, they do not need to accept the Forest Service's FLPMA easement to gain access to their property. Particularly, the Fitzgeralds object to the revocable nature of the FLPMA easement and the annual fee imposed for its fair market value because these conditions would fundamentally change the nature of any common law interest they own over FDR 56B.

FLPMA and ANILCA clearly subject the Fitzgeralds' access over Forest Service land to the statutory permitting process. Adams II, 255 F.3d at 795. While the Forest Service is correct to note that it has the authority under Adams II to impose some regulations on the use of FDR 56B regardless of any common law easement held by the Fitzgeralds, this still leaves open the question of whether the regulations imposed are reasonable. For such an inquiry, whether the Fitzgeralds have a common law easement is relevant. For instance, government counsel acknowledged at oral argument that the fee provision of the FLPMA easement would be unreasonable under the APA if the Fitzgeralds owned a preexisting easement because the Forest Service would be imposing a fee for something the Fitzgeralds already owned. Accordingly, we will review the Fitzgeralds' Quiet Title claims to determine whether the proposed FLPMA easement is reasonable.

Skranak v. Castenada, 425 F.3d 1213 (9th Cir.2005), supports our conclusion that a determination of common law rights is relevant to the reasonableness of the FLPMA easement. In Skranak, the owners of mining claims filed complaints in the district court under the Quiet Title Act and the APA after the Forest Service denied them unconditional special use permits to access their claims. Id....

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