Rights-of-Way Across National Forests
| Decision Date | 23 June 1980 |
| Docket Number | 80-8 |
| Citation | 4 Op. O.L.C. 30 |
| Court | Opinions of the Office of Legal Counsel of the Department of Justice |
| Parties | Rights-of-Way Across National Forests. |
The Act of June 4, 1897, does not grant a right of access to owners of land surrounded by national forests, other than actual settlers, and the Secretary of Agriculture has discretionary authority to deny such access unless a right otherwise exists.
The common law doctrine of easement by necessity does not apply to land owned by the federal government, but a right of access may be implied from the terms of a federal land grant in some circumstances. No statutes currently modify any such implied right found to exist.
Absent a prior existing access right, the Secretary of Agriculture may deny "adequate access" to land within a national forest wilderness area, but must offer a land exchange as indemnity.
My Dear Mr. Secretary: This replies to your letter of September 18 1979, requesting my opinion on several questions concerning access rights of private owners of land located within the boundaries of the national forests. Your letter poses the following questions:
(1) Whether the Organic Act of June 4, 1897 [1] grants to private landowners [2] other than actual settlers, a right of ingress to and egress from their properties located within the exterior boundaries of the national forests, or whether you may deny such access;
(2) Whether private landowners with property located within the exterior boundaries of the national forests have a right-of-way across national forest lands by implied easement or easement by necessity enforceable against the federal government; and, if so, whether this right-of-way is limited to those instances in which the United States by its conveyance created a situation in which nonfederal lands are surrounded by public lands;
(3) Whether, if a right-of-way exists across national forests, it has been modified by:
(4) Whether § 5(a) of the Wilderness Act, 16 U.S.C. § 1134(a) authorizes you to deny access and offer as indemnity an exchange of national forest land for private land, or whether the private landowner may insist on a right of access.
I conclude, first, that the Organic Act of June 4, 1897, does not grant a right of access to owners of land surrounded by national forests, other than actual settlers, and that you have discretionary authority to deny such access, provided that a right of access does not otherwise exist. Of course access cannot be denied arbitrarily.
Second in my opinion, the common law doctrine of easement by necessity does not apply to land owned by the federal government. A right of access may be implied from the terms of a federal land grant only if Congress intended to grant the right. This intent may be shown from the circumstances surrounding the grant, including the purpose for which it was made.
Third, none of the statutes you have asked us to consider, nor any others that we have found, would modify such a right in any case in which it is found to exist.
Fourth, I conclude that, absent a prior existing access right, you may deny "adequate access" under the Wilderness Act, but you must offer a land exchange as indemnity.
Your first question is whether Congress has given private inholders[3]a statutory right of ingress and egress with respect to their property, including a right to build roads. Congress clearly has the power to grant such statutory rights.[4] The question is whether it has done so.
Your department concludes that the Organic Act of June 4, 1897, grants a right of access, including a right to build roads, to all owners [ 32] of land surrounded by national forest reserves. Section 478, the codification of § 1 of the Act, provides:
Nothing in sections 473 to 478, 479 to 482 and 551 of this title shall be construed as prohibiting the egress or ingress of actual settlers residing within the boundaries of national forests, or from crossing the same to and from their property or homes; and such wagon roads and other improvements may be constructed thereon as may be necessary to reach their homes and to utilize their property under such rules and regulations as may be prescribed by the Secretary of Agriculture. Nor shall anything in such sections prohibit any person from entering upon such national forests for all proper and lawful purposes, including ' that of prospecting, locating, and developing the mineral resources thereof. Such persons must comply with the rules and regulations covering such national forests.
In 1962, Attorney General Kennedy was asked by the Secretary of Agriculture for his opinion on the meaning of this statute. See 42 Op. Att'y Gen. 127 (1962). Prior to 1962, your department interpreted the first sentence of § 478 as granting a right of access to all owners of land surrounded by a national forest. It reasoned that the term "ingress and egress" included the construction of wagon roads, and that the term "actual settlers" included any person or corporation owning property within the boundaries of national forests. As a result, private landowners, including lumber corporations, were considered to have a statutory right to build logging roads. Id. at 130. Attorney General Kennedy opined that the term "actual settlers" includes original settlers who reside on the land, and excludes corporations and other business entities.[5] He further concluded that the Secretary of Agriculture has discretionary authority to impose a reciprocity requirement on requests by inholders, other than actual settlers, to use existing roads or to build new roads within national forests. Id. at 142-45.
You have advised us that, notwithstanding the 1962 opinion, your department has continued to maintain that § 478 creates a right of access for all private inholders. This interpretation, you have informed us, has been based upon the second sentence of § 478, which was not directly addressed in the 1962 opinion. My review of the reasoning set forth in that earlier opinion, as well as my analysis of § 478 and its legislative history, convinces me that no such access right exists.
The 1962 opinion analyzed § 478 by dividing it into the following three categories: (1) ingress and egress of actual settlers; (2) construction [ 33] of wagon roads and other improvements by actual settlers; and (3) entry upon the national forest for all proper and lawful purposes by any person. Id. at 127, 138-39. We are concerned here only with the third category because you inquire as to the rights of landowners other than actual settlers. In this category, "entry upon" may be subdivided into entry by mere ingress and egress, in particular the use of existing roads, and entry requiring construction of roads. Section 478 provides that any entry upon the forest reserve by any person is subject to the rules and regulations covering such national forests. The question now presented, therefore, is whether the Secretary's regulations may, in appropriate cases, include denial of the requested entry.
To determine correctly the scope of rights protected by the 1897 Act, it is necessary to study carefully the language of the Act itself, and its legislative history. As the legislative history is fully summarized in the 1962 opinion, I note only the aspects particularly relevant here. At the outset, it is helpful to review the sequence of events which led to the passage of the Act. During the 1800's the public entered freely upon federal land, and Congress, although it did not provide specific legal authority for most uses of the public domain, made no serious attempt to halt such uses. See generally G. Robinson, The Forest Service 2-5 (1978); Clawson & Held, The Federal Lands 46 (1957). This tacit approval constituted an open invitation to the public to avail itself of the federal land without specific authorization. Most people assumed. that the United States was a temporary titleholder and that the land would eventually pass into private ownership. See R. Robbins, Our Landed Heritage: The Public Domain, 1776-1970, 5-6 (1976). The public land laws of the era, including preemption laws, [6] homestead laws, [7] and mining laws, [8] presumed unimpeded access to the public domain.
This policy of unimpeded access was recognized by the Supreme Court in Buford v. Houtz, 133 U.S. 320, 326 (1890), a case in which the Court considered the complaints of owners of alternate odd-numbered sections of land that sheepowners were damaging their land by driving [ 34] sheep across it to reach the even-numbered sections of the public domain. The Court denied plaintiffs' request for an injunction with the following explanation:
133 U.S. at 326-27. The Court refused to allow the complainants, under the pretense of owning a small portion of a tract of land, to obtain control over the entire tract and thereby deny defendants their privilege to use the public domain. 133 U.S. at 322. See also, Broder v. Water Co., 101 U.S. 274,...
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