U.S. v. Jenks

• Decision Date: 26 April 1994
• Docket Number: No. 92-2171,92-2171
• Citation: 22 F.3d 1513
• Parties: UNITED STATES of America, Plaintiff-Counter-Defendant-Appellee, v. Randolph JENKS, Defendant-Counter-Claimant-Appellant, National Inholders Association; New Mexico Cattle Growers Association; New Mexico Farm and Livestock Bureau; Arizona & New Mexico Coalition of Counties for Stable Economic Growth; New Mexico Wool Growers' Association; the South Eastern New Mexico Grazing Association; the New Mexico Farm and Livestock Bureau; and the Federal Lands Legal Foundation, Amici Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1513

22 F.3d 1513

UNITED STATES of America, Plaintiff-Counter-Defendant-Appellee, v. Randolph JENKS, Defendant-Counter-Claimant-Appellant National Inholders Association; New Mexico Cattle Growers Association; New Mexico Farm and Livestock Bureau; Arizona & New Mexico Coalition of Counties for Stable Economic Growth; New Mexico Wool Growers' Association; the South Eastern New Mexico Grazing Association; the New Mexico Farm and Livestock Bureau; and the Federal Lands Legal Foundation, Amici Curiae.

No. 92-2171.

United States Court of Appeals Tenth Circuit.

April 26, 1994.

Peter Appel, Atty., (Roger Clegg, Acting Asst. Atty. Gen., Don J. Svet, U.S. Atty., John W. Zavitz, Asst. U.S. Atty., Albuquerque, NM, and Jacques B. Gelin, Atty., Dept. of Justice, with him on the brief), Environment and Natural Resources Div., Dept. of Justice, Washington, DC, for plaintiff-appellee.

Steven J. Lechner (William Perry Pendley with him on the brief) of Mountain States Legal Foundation, Denver, CO, for defendant-appellant.

Karen Budd-Falen of the Federal Lands Legal Foundation, Cheyenne, WY and Eric Twelker, Atty., Juneau, AK, for amici curiae.

Before BALDOCK, BARRETT, and EBEL, Circuit Judges.

BALDOCK, Circuit Judge.

Defendant Randolph Jenks appeals the district court's order enjoining his use of three roads providing access to his inholdings ¹ without Forest Service authorization pursuant to the Alaska National Interest Lands Conservation Act of 1980, 16 U.S.C. Secs. 3101-3233 ("ANILCA"). We have jurisdiction under 28 U.S.C. Sec. 1291.

I.

This case of first impression within our circuit, involving a dispute over access to inholdings, is the modern legacy of early congressional enactments granting public land to private individuals to promote the settlement of the western portion of the United States. Principal among these enactments was the Homestead Act of 1862, which granted 160 acres of land to individuals who agreed to live on, and make improvements to the land for five years. See Act of May 20, 1862, ch. 75, 12 Stat. 392 (codified at 43 U.S.C. Secs. 161-284) (repealed 1976). ² Although the Homestead Act made no provision for access to and from granted land over the retained lands of the United States, it was presumed that "an implied license" to use public lands would provide settlers with unimpeded access to their property. See Buford v. Houtz, 133 U.S. 320, 326, 10 S.Ct. 305, 307, 33 L.Ed. 618 (1890).

Homesteaders' unimpeded access across federal lands remained largely unchallenged by the federal government until the late nineteenth century, when "efforts expanded to protect the nation's natural resources from the results of what was perceived as overly generous land use policies." 43 Op.Att'y Gen. No. 26 at 4. In 1891, Congress passed a law authorizing the President to reserve forest lands from the public domain. See Act of March 3, 1891, ch. 561, Sec. 24, 26 Stat. 1103 (codified at 16 U.S.C. Sec. 471) (repealed 1976). Pursuant to this Act, on February 22, 1897, President Cleveland issued proclamations placing approximately twenty million acres of public land in forest reserves. See Montana Wilderness Ass'n v. United States, 496 F.Supp. 880, 888 (D.Mont.1980), aff'd on other grounds, 655 F.2d 951 (9th Cir.1981). The proclamations prevented any settlement on lands reserved in the national forest system.

Following the issuance of President Cleveland's proclamations, Congress sought to protect the access rights of homesteaders and others owning property within the newly created forest reserves by enacting the Forest Service Organic Administration Act, ch. 2, 30 Stat. 34 (1897) (codified at 16 U.S.C. Secs. 473-482, 551). Section 478 of the Organic Act ensured access over national forest land to "actual settlers" and "protect[ed] whatever rights and licenses with regard to the public domain existed prior to the reservation." Montana Wilderness, 496 F.Supp. at 888 (citation omitted) (construing 16 U.S.C. Sec. 478).

By 1976, Congress had enacted a tangled array of laws granting rights-of-way across federal lands. See, e.g., 43 U.S.C. Sec. 932 (repealed 1976) (granting rights-of-way for construction of highways over public lands). In an effort to untangle these laws and establish a statutory scheme for the management of forest lands, Congress passed the Federal Land Policy and Management Act ("FLPMA"). See Pub.L. No. 94-579, 90 Stat. 2744 (codified at 43 U.S.C. Sec. 1701-1784 (1976)). Title V of FLPMA repealed over thirty statutes granting rights-of-way across federal lands and vested the Secretaries of Agriculture and Interior with authority "to grant, issue, or renew rights of way over [Forest Service and public lands] for ... roads, trails [and] highways." 43 U.S.C. Sec. 1761(a). With the passage of FLPMA, Congress believed inholders "had the right of access to their [inholdings] subject to reasonable regulation ... under [ ] FLPMA." S.Rep. No. 413, 96th Cong., 2d Sess. 1, 310 (1980), reprinted in 1980 U.S.C.C.A.N. 5070, 5254 (reviewing access rights of inholders under FLPMA and explaining need for Alaska National Interest Lands Conservation Act of 1980, 16 U.S.C. Secs. 3101-3233 ("ANILCA")). However, access rights to inholdings, especially those inholdings located in wilderness areas, became more uncertain when the Secretary of Interior concluded that FLPMA "authorized denial of access across public lands subject to wilderness review." Id.

In order to resolve "any lingering legal questions" concerning inholders' right of access to their property, Congress passed Sec. 3210(a) of ANILCA in 1980. ³ See Pub.L. No. 96-487, 94 Stat. 2374 (codified at 16 U.S.C. Secs. 3101-3233 (1980)). Section 3210(a) of ANILCA guarantees to inholders a threshold "right of access to their lands subject to reasonable regulation [under FLPMA] by ... the Secretary of Agriculture in the case of national forest [lands]." ⁴ Adams v. United States, 3 F.3d 1254, 1258-59 (9th Cir.1993) (citation omitted). While ANILCA mandates that the Forest Service provide reasonable access to all inholders, it directs inholders to "comply with rules and regulations applicable to ingress and egress to and from the National Forest System." 16 U.S.C. Sec. 3210(a).

II.

The current controversy results from the Forest Service's attempt to regulate Defendant's access to his inholdings pursuant to ANILCA and FLPMA. Defendant is the owner of three ranches located within the Apache National Forest in Catron County, New Mexico. The Centerfire Bog Ranch, the Double J. Ranch and the Patruff Ranch were originally patented to Defendant's predecessors in interest pursuant to the Homestead Act. Each of Defendant's ranches is completely surrounded by forest service land; consequently, Defendant must cross forest service land in order to access his property. Prior to the present controversy, Defendant had use of three separate roads, known as the Double J., Patruff, and Centerfire Bog Roads, to access his property.

In the early 1980s, the Forest Service sought to discontinue its longstanding practice of allowing Defendant free use of the three access roads. The Forest Service contacted Defendant and requested that he apply for a special use permit pursuant to ANILCA to obtain a legal right of access across the roads passing through forest service land. ⁵ The proposed special use permit sought to among other things (1) impose conditions which regulate the use of the roads and prevent harm to the National Forest Service lands and (2) require Defendant to pay a fee for his continued use of the access roads. Defendant refused to comply with the request claiming that the terms of the proposed permit were inconsistent with his patent and common law and statutory access rights.

Following unsuccessful attempts to force Defendant to apply for a special use permit, the Forest Service initiated the instant action on May 17, 1990 in the federal district court of New Mexico, seeking an order enjoining Defendant from the use of the access roads without proper land use authorization from the Forest Service. Defendant counterclaimed contending that his patent, common law and statutory rights provided a legal right of access over the roads and that the regulations contained in the Forest Service's proposed special use permit were inconsistent with these rights. Defendant also brought a quiet title action seeking a determination of his patent and common law easement claims. See Kinscherff v. United States, 586 F.2d 159, 161 (10th Cir.1978) (easements are real property interests subject to quiet title actions). The district court entered summary judgment in favor of the Forest Service and enjoined Defendant's use of the disputed roads without proper land use authorization from the United States. Defendant now appeals.

We review the grant or denial of a summary judgment motion de novo applying the same legal standard used by the district court. Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc. 912 F.2d 1238, 1241 (10th Cir.1990) (citations omitted). Summary judgment is appropriate when there is no genuine dispute over a material fact and the moving party is entitled to judgment as a matter of law. Russillo v. Scarborough, 935 F.2d 1167, 1170 (10th Cir.1991).

III.

On appeal, the parties agree that Defendant has a right of access to his inholdings over forest service land. The source and extent of that access right, however, form the basis of the dispute. Defendant argues that rights granted pursuant to his patent or common law easements establish his right of access over the disputed roads and the terms of the proposed special use permit constitute an unreasonable regulation of these patent or common law rights. The Forest Service, on the other hand, argues that Defendant is not vested with any patent or common law rights which would establish a right of access over the disputed roads. Furthermore, the Forest Service argues the regulations contained in the...