C.F.R. » Title 36 » CHAPTER II—FOREST SERVICE, DEPARTMENT OF AGRICULTURE › PART 251—LAND USES › Subpart D—Access to Non-Federal Lands

36 C.F.R. § 251.114

Criteria, terms and conditions

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(a) In issuing a special-use authorization for access to non-Federal lands, the authorized officer shall authorize only those access facilities or modes of access that are needed for the reasonable use and enjoyment of the land and that minimize the impacts on the Federal resources. The authorizing officer shall determine what constitutes reasonable use and enjoyment of the lands based on contemporaneous uses made of similarly situated lands in the area and any other relevant criteria.

(b) Landowners must pay an appropriate fee for the authorized use of National Forest System lands in accordance with § 251.57 of this part.

(c) A landowner may be required to provide a reciprocal grant of access to the United States across the landowner's property where such reciprocal right is deemed by the authorized officer to be necessary for the management of adjacent Federal land. In such case, the landowner shall receive the fair market value of the rights-of-way granted to the United States. If the value of the rights-of-way obtained by the Government exceeds the value of the rights-of-way granted, the difference in value will be paid to the landowner. If the value of the rights-of-way across Government land exceeds the value of the rights-of-way across the private land, an appropriate adjustment will be made in the fee charged for the special-use authorization as provided in § 251.57(b)(5) of this part.

(d) For access across National Forest System lands that will have significant non-Forest user traffic, a landowner may be required to construct new roads or reconstruct existing roads to bring the roads to a safe and adequate standard. A landowner also may be required to provide for the operation and maintenance of the road. This may be done by arranging for such road to be made part of the local public road system, or formation of a local improvement district to assume the responsibilities for the operation and maintenance of the road as either a private road or as a public road, as determined to be appropriate by the authorizing officer.

(e) When access is tributary to or dependent on forest development roads, and traffic over these roads arising from the use of landowner's lands exceeds their safe capacity or will cause damage to the roadway, the landowner(s) may be required to obtain a road-use permit and to perform such reconstruction as necessary to bring the road to a safe and adequate standard to accommodate such traffic in addition to the Government's traffic. In such case, the landowner(s) also shall enter into a cooperative maintenance arrangement with the Forest Service to ensure that the landowner's commensurate maintenance responsibilities are met or shall make arrangements to have the jurisdiction and maintenance responsibility for the road assumed by the appropriate public road authority.

(f) In addition to ensuring that applicable terms and conditions of paragraphs (a) through (e) of this section are met, the authorizing officer, prior to issuing any access authorization, must also ensure that:

(1) The landowner has demonstrated a lack of any existing rights or routes of access available by deed or under State or common law;

(2) The route is so located and constructed as to minimize adverse impacts on soils, fish and wildlife, scenic, cultural, threatened and endangered species, and other values of the Federal land;

(3) The location and method of access is as consistent as reasonably possible with the management of any congressionally designated area and is consistent with Forest Land and Resource Management Plans or the plans are amended to accommodate the access grant, and;

(4) When access routes exist across the adjacent non-Federal lands or the best route as determined by the authorizing officer is across non-Federal lands, the applicant landowner has demonstrated that all legal recourse to obtain reasonable access across adjacent non-Federal lands has been exhausted or has little chance of success.

(g) In addition to the other requirements of this section, the following factors shall be considered in authorizing access to non-federally owned lands over National Forest System lands which are components of the National Wilderness Preservation System:

(1) The use of means of ingress and egress which have been or are being customarily used with respect to similarly situated non-Federal land used for similar purposes;

(2) The combination of routes and modes of travel, including nonmotorized modes, which will cause the least lasting impact on the wilderness but, at the same time, will permit the reasonable use of the non-federally owned land;

(3) The examination of a voluntary acquisition of land or interests in land by exchange, purchase, or donation to modify or eliminate the need to use wilderness areas for access purposes.

Notes of Decisions
Cited in 22 cases, 1992–2020 · leading case: Skranak v. Castenada, 425 F.3d 1213 (9th Cir. 2005).
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Skranak v. Castenada, 425 F.3d 1213 (9th Cir. 2005). · cites it 10× “They claim that the Forest Service failed to comply with its own regulation, 36 C.F.R. § 251.114 (f), by refusing to determine whether the Skranaks or Harpole already owned easements.”
Lester G. Adams & Jean D. Adams, Individually & as Trs. of the 1984 Living Trust v. United States, 255 F.3d 787 (9th Cir. 2001). · cites it 3× “” 36 C.F.R. § 251.114 (f)(2). Inholders who require surface-disturbing access or use greater than that afforded the general public must “apply for and receive a special-use or road-use authorization.”
Fitzgerald v. United States, 932 F. Supp. 1195 (D. Ariz. 1996). · cites it 4× “However, under 36 C.F.R. § 251.114 (f), The authorizing officer, prior to issuing any access authorization, must also ensure that: (1) The landowner has demonstrated a lack of any existing rights or routes of access available by deed or under State or common law.”
Colorado Wild, Inc. v. United States Forest Serv., 523 F. Supp. 2d 1213 (D. Colo. 2007). · cites it 2× “These include whether the Forest Service abused its discretion in deferring to Mineral County’s PUD approval to define “reasonable use and enjoyment” of the property, either as a general matter, see 36 C.F.R. § 251.114 (a), 15 or because the Forest Service was aware months…”
United States v. Jenks, 804 F. Supp. 232 (D.N.M. 1992). · cites it 3× “113 , and impose certain conditions to regulate use of such roads and to protect Federal lands and resources, 36 C.F.R. § 251.114 , including the requirement of paying a fee for such access rights based on fair market value of the right acquired as determined by appraisal.”
Breaker v. United States, 977 F. Supp. 2d 921 (D. Minnesota 2013). · cites it 4× “36 C.F.R. § 251.114 (a). District Ranger Larson concluded that the Breakers had adequate access to the Property by way of the Portage River and the old road that runs toward the Property.”
United States v. Tommy A. Srnsky David M. Srnsky, 271 F.3d 595 (4th Cir. 2001). “36 C.F.R. § 251.114 (f) (emphasis added).”
United States v. Jenks, 129 F.3d 1348 (10th Cir. 1997). “In reaching this conclusion, we relied on 36 C.F.R. § 251.114 (f)(1), which requires the officer authorizing a special use permit to ensure that the inholder “has demonstrated a lack of any existing rights .”
Nelson v. United States, 64 F. Supp. 2d 1318 (N.D. Ga. 1999). · cites it 5× “See 36 C.F.R. § 251.114 (f)(1). § 1134(a) states: In any case where State-owned or privately owned land is completely surrounded by national forest lands within areas designated by this chapter as wilderness, such State or private owner shall be given such rights as may be…”
United States v. Jenks, 22 F.3d 1513 (10th Cir. 1994). · cites it 2× “36 C.F.R. § 251.114 (f)(1) (emphasis added).”
Peper v. United States Dep't of Agric., 478 F. App'x 515 (10th Cir. 2012). · cites it 2× “With respect to the APA, he asserted that (1) defendants violated 36 C.F.R. § 251.114 (f)(1) 5 by failing to consider his pre-existing interest in access to the property before granting a special use permit under the ANILCA; and (2) because the special use permit contained…”
Tieze v. Killam, 179 P.3d 10 (Colo. Ct. App. 2007). “” 36 C.F.R. § 251.114 (a); see also 42 U.S.”
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