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.

June 23, 1980

T h e S e c r e t a r y o f A g r i c u l t u r e

M y D e a r M r . S e c r e t a r y : 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 sur

rounded by public lands;

(3) Whether, if a right-of-way exists across national forests, it has

been modified by:

(a) The Organic Act of June 4, 1897, 16 U.S.C. § 478;

(b) The Wilderness Act, § 5(a), 16 U.S.C. § 1134(a);

(c) The Act of October 13, 1964, 16 U.S.C. §§ 532-538;

1 A ct o f June 4. 1897, ch. 2. § 1. 30 Stat. 36 (codified at 16 U .S.C. § 478).

-A s used in this opinion, the term “ priv a te landow ners" refers to all nonfederal landow ners unless

otherw ise indicated.

30

(d) The Montana Wilderness Study Act of 1977, § 3, 16 U.S.C.

§ 1132 note; or

(e) Any other statute; and

(4) Whether § 5(a) of the Wilderness Act, 16 U.S.C. § 1134(a), au

thorizes 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 show

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.

I.

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

3An “ in holder" is a landow ner w hose pro perty is com pletely su rrounded by pro p erty ow ned by

the U nited States. Again, as used in this opinion the term “priv ate inholder*’ refers to all nonfederal

inholders.

4 The pow er to control public lands is granted to C ongress by the Constitution:

T h e C ongress shall have P ow er to D ispose o f and m ake all needful Rules and

Regulations respecting the T errito ry o r o th e r p ro p erty belonging to the U nited

S tale s.. ..

U.S. Const.. A rt. IV, § 3, cl. 2. T his com prehensive congressional authority over public lands includes

the pow er to prescribe the times, conditions, and m ode o f transfer (United States v. Gratiot. 39 U.S. (14

Pet.) 526, 537-38 (1840)); to declare the effect of title em anating from the U nited States (Bagnell v.

Broderick, 38 U.S. (13 Pet.) 436, 450 (1839)); and to p revent unlaw ful occ u p ation o f public pro p erly

(Cam field v. United Stoles. 167 U.S. 518, 525 (1897)). In Kleppe v. N ew Mexico. 426 U.S. 529, 539

(1976), the C ou rt stated: “ (W jhile the furthest reaches of p o w er granted by the P roperty C lause hav e

not yet been definitely resolved, w e have repeatedly observed that the pow er ov e r public lands thus

entrusted to Congress is w ithout lim itation."

31

of land surrounded by national forest reserves. Section 478, the codifi

cation 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 na

tional forests, or from crossing the same to and from their

property or homes; and such wagon roads and other im

provements may be constructed thereon as may be neces

sary 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 na

tional 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 landown

ers, 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 enti

ties.5 He further concluded that the Secretary of Agriculture has discre

tionary 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) construc

5 Between the extrem es o f the original settler and corp o ra tion s o r business entities are interm ediary

types o f property ow ners such as heirs o r assigns o f an actual settler. T he 1962 opinion did not

consider w hether those in term ediary pro p e rty ow ne rs are “ actual settlers” w ithin the m eaning o f the

A ct. 42 Op. A tt’y Gen. 127, 138 (1962).

32

tion 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 pre

sented, therefore, is whether the Secretary’s regulations may, in appro

priate 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 Serv

ice 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

6T he A ct o f May 29, 1830, 4 Stal. 420-21, first granted preem ption rights to settlers. U nder its

term s, any person w ho had settled on the public dom ain and had cultivated a tract of land was

authorized to purchase any num ber o f acres up to a maximum o f 160 acres upon paying to the U nited

States a minimum price for Che land.

7 The first hom estead act w as passed in 1862. A ct o f M ay 20, 1862, 12 Stat. 392-93. It pro vided that

certain persons could en ter unappro priated public lands and, upon satisfying certain conditions, obtain

a G overnm en t patent therefor.

8T he M ining Law o f 1866 (A ct of July 26, 1866, ch. 262, 14 Stat. 251) opened m ineral deposits on

public lands to exploration, claim , and occu patio n. T he only specific reference to rights-of-w ay

appeared in § 8, w hich granted a right-of-w ay for the co nstruction o f h ighw ays over public lands not

reserved for public uses. T he M ineral L ocation L aw of 1872 (A ct of M ay 10, 1872, ch. 752, 17 Stat.

91-96) did not m ention access across the public dom ain. From the outset, how ever, federal m ining

law s have been construed as an invitation to enter, discover, and locate claim s upon public lands not

w ithdra w n or reserved. See, e.g.. Union O il Co. v. Sm ith, 249 U.S. 337, 346-47 (1919); United States v.

Carlile. 67 l.D . 417, 421 (1960). See generally J. Lonergan, Access to Interm ingled M ineral Deposits,

M ining Claim s and Private Lands Across Surrounding Public Domain an d National Forest Lands. 8 Land

& W ater L. Rev. 124 (1973).

33

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:

We are of opinion that there is an implied license, grow

ing out of the custom of nearly a hundred years, that the

public lands of the United States . . . shall be free to the

people who seek to use them where they are left open

and unenclosed, and no act of government forbids this

use. . ..

The whole system of the control of the public lands of

the United States as it had been conducted by the Gov

ernment, under acts of Congress, shows a liberality in

regard to their use which has been uniform and

remarkable.

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 privi

lege to use the public domain. 133 U.S. at 322. See also, Broder v. Water

Co., 101 U.S. 274, 276 (1879) (Court noted conduct of government

encouraging development of mines and construction of canals and

ditches on public domain); Forbes v. Gracey, 94 U.S. 762 (1876) (Court

noted tacit consent to enter upon the public lands for the purposes of

mining); Atchison v. Peterson, 87 U.S. (20 Wall.) 507 (1874) (Court noted

“silent acquiescence” to the general occupation of the public lands for

mining).

In the late 19th century, efforts expanded to protect the Nation’s

natural resources from the results of what were perceived as overly

generous land-use policies. See Robbins, supra, at 301-24. In 1891, the

Congress passed a law authorizing the President to reserve forest lands

from the public domain. Act of March 3, 1891, ch. 561, §24, 26 Stat.

1103. One provision of this Act, § 24, later known as the Forest Re

serve Act of 1891, was added as an amendment by the conference

committee.9 The amended bill was considered in the closing days of the

Congress on an oral presentation of its terms, no printed version being

available. It was approved with little debate.10 The status of these forest

9 Section 24 provided:

[T]he President o f the U nited States m ay, from time to time, set apart and reserve, in

any State or T errito ry having public land bearing forests, any part- o f the public lands

w holly or in part c o v e red w ith tim ber or u n derg ro w th , w heth e r of com m ercial value

or not, as public reservations, and the President shall, by public proclam ation, declare

th e establishm ent of such reserv ations and the limits thereof.

l0S om e S enators expressed concern about not kn ow ing exactly w hat was in .th e report, but the

m ajority felt that in the closing days o f the session “ there has got to be som ething taken for granted or

else the public business cannot go fo rw ard as it should.*’ 22 C ong. Rec. 3546-47 (1891). T he brief

H ouse debate appears at 22 Cong. Rec. 3613-16 (1891).

34

reserves was not defined, nor were guidelines provided for the manage

ment of the reserves.

On February 22, 1897, President Cleveland, pursuant to the 1891

Act, issued proclamations placing approximately 20 million acres of

public land in forest reserves. Presidential Proclamations Nos. 19-31,

Feb. 22, 1897, 29 Stat. 893-912. Within the boundaries of the reserves

were villages, patented mining claims, homestead claims of actual set

tlers and other developments. See 30 Cong. Rec. 901-02 (1897). Each of

the proclamations contained the following admonition: “Warning is

hereby expressly given to all persons not to enter or make settlement

upon the tract of land reserved by this proclamation.” See, e.g., 29 Stat.

894 (1897). The proclamations also prohibited the general use of timber

on the reserves, and jeopardized other theretofore legitimate activities

of persons living within or near the reserves.

Congressmen from states affected by the proclamations expressed

outrage at what they considered the President’s hasty and ill-advised

action. 30 Cong. Rec. 902 (1897). This reaction culminated in the

passage of an amendment to the Sundry Civil Expense Appropriation

Act, 30 Stat. 36 (1897). This amendment was designed to solve the

“difficulties surrounding these forest reservations” (id. at 900) and to

provide for “administering the forest so reserved” (id. at 909).11 Senator

Carter of Montana explained that the amendment was offered “not for

the purpose of benefitting any particular individual or class of individ

uals, but for the purpose of permitting existing communities in the

United States to enjoy the privileges which have ordinarily been ac

corded to the pioneer settlers on the frontier everywhere.” Id. at 902.

Other Senators also criticized the provision prohibiting entry or settle

ment upon the reserves. Id. at 910-11. Senator Allison of Iowa stated:

“[I]f segregations are made I think every interest existing at the time,

however remote it may be, should be protected.” Id. at 911 (emphasis

added). The House debate on the amendment indicates that the con

gressmen also were concerned about preserving existing uses of the

forest reserves. Id. at 1007-13 (remarks of Representatives Castle,

Knowles, Lacy, and DeVries).12

The bill was referred to a conference committee, which reported the

bill without changes in or comments upon the access section. Id. at

1242-43. During the Senate debate on the conference report, some of

the same western Senators on whose behalf the amendment was intro

duced sought to change the clause “actual settlers residing within the

boundaries of national forests” to “bona fide settlers or owners within a

reservation.” Id. at 1278-81. Senator White explained that the provision

“ T he am endm ent tem porarily restored the w ithdraw n lands to the public dom ain by suspending

the operatio n o f the presidential proclam ations for approxim ately one year. 30 Cong. Rec. 899-900

(1897). It also clarified the President’s au th o rity to revoke, m odify, o r suspend such proclam ations.

,2F or a co m plete discussion o f this legislative history, see 42 O p. A lt’y G en. 127, 135-38 (1962).

35

as drafted did not adequately protect all persons who had acquired title

in fee from the government. Id. at 1278. The amendment was defeated.

Id. at 1285. Opponents of the amendment emphasized that there was no

intent to deprive any person of access to his property, and that “what

ever rights have been acquired as respects the public lands under the

public land laws are reserved and preserved.” Id. at 1283. It was noted

that entry upon the forests was subject to the rules and regulations of

the Secretary of Interior (who then had this administrative authority)

and that such rules would not likely prevent access to a person’s home.

Id. at 1280 (remarks of Senator Berry). Notwithstanding the concession

that the bill was “imperfect,” the conference report was agreed to. It

was pointed out that further amendment would cause substantial delay

and that any evils could be corrected by subsequent legislation. Id. at

1282—83. The House adopted the conference report without debate on

this provision. Id. at 1397-401.

This legislative history demonstrates that the effect of the second

sentence of § 478 is to protect whatever rights and licenses with regard

to the public domain existed prior to the reservation. We interpret the

provision as a congressional declaration that the establishment of forest

reserves would not alter the long-standing policy of allowing

unimpeded access to the public land or interfere with the rights of

persons then using the land, not as an affirmative grant of a broad right

of entry to all persons. The express language of the statute provides

that nothing in the act shall be construed to prohibit certain activities.

The language grants no rights not already in existence. See Robbins,

supra, at 323; John Ise, The United States Forest Policy 140 (1920).

The protection of “lawful” and “proper” entry upon the reserves

cannot be construed to limit congressional authority to regulate such

entry. No vested right to use the public domain for a particular purpose

arises from the government’s mere acquiescence in such use. In Light v.

United States, 220 U.S. 523 (1911), the Court wrote:

[WJithout passing a statute, or taking any affirmative

action on the subject, the United States suffered its public

domain to be used for such purposes. There thus grew up

a sort of implied license that these lands, thus left open,

might be used so long as the Government did not cancel

its tacit consent. Buford v. Houtz, 133 U.S. 326. Its failure

to object, however, did not confer any vested right on the

complainant, nor did it deprive the United States of the

power of recalling any implied license under which the

land had been used for private purposes.

Id. at 535. See also The Yosemite Valley Case, 82 U.S. (15 Wall.) 77

(1872); Frisbie v. Whitney, 76 U.S. (9 Wall.) 187, 194 (1869).

Section 478 clearly subjects entry upon the national forests to reason

able regulation by the Secretary. Prior to the enactment of the Federal

36

Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C.

§§ 1701-1782, and its repeal of § 2 of the Act of June 4, 1897, 16 U.S.C.

§ 551, insofar as the latter section applied to the issuance of rights-of-

way through public lands, the Secretary was required to read § 478 and

§551 together. United States v. Grimaud, 220 U.S. 506, 515 (1911).

Section 551 provides that the Secretary shall “make such rules and

regulations and establish such service as will insure the objects of such

reservations, namely, to regulate their occupancy and use and to pre

serve the forests thereon from destruction . . . This section was held

to confer upon the Secretary a “broad scope of regulation” intended to

“be effective.”

See 42 Op. Att’y Gen. 127, 140, citing Chicago Mil. & St.

P. Ry. v. United States, 218 F. 288, 298 (9th Cir. 1914), affd, 244 U.S.

358 (1917); Shannon v. United States, 160 F. 870, 873 (9th Cir. 1908). In

Grimaud, the Court stated that the Secretary “is required to make

provisions to protect the forest reserves from depredation and harmful

uses.” 220 U.S. at 552. The Secretary’s authority to grant rights-of-way

across national forest lands now is based on 16 U.S.C. §§ 532-538, and

FLPMA, 43 U.S.C. §§ 1761-1771. Both statutes authorize the Secretary

to protect the forest lands.13

This interpretation is consistent with the 1962 opinion of the Attor

ney General.14 His review of the legislative history of §478 disclosed a

legislative desire to protect explicitly only the rights of ingress and

egress of actual settlers. 42 Op. Att’y Gen. 127, 138. He found that

entry upon the national forests by all other persons is subject to your

rules and regulations covering the forests and discussed the scope of

your regulatory authority as follows:

,3Section 504 of FL P M A . 43 U .S.C. § 1764, directs ihe S ecretary to issue regulations w ith respect

to the term s and conditions o f the rights-of-w ay. Section 505, 43 U.S.C. § 1765, requires, inter alia, that

each right-of-w ay perm it contain term s and conditions w hich will "pro tect the environm ent.*' “ protect

Federal p roperty,“ and “ otherw ise protect the public interest in the lands trav ersed by the rights-of-

w ay o r adjacent thereto.** T he A ct o f O cto b e r 13, 1964, 16 U .S.C. §§ 532-538, w hich generally

concerns the co nstruction and m aintenance o f a system o f roads w ithin the national forests, authorizes

the S ecretary to grant perm anent o r tem porary easem ents “ under such regulations as he may pre 

scrib e." 16 U.S.C. § 533.

u In 1964, in response to the A ttorney G eneral’s 1962 opinion. C ongress passed legislation .giving

th e S ecretary the authority to grant perm anent or tem porary easem ents ov e r lands m anaged by the

D epartm ent of A griculture. Pub. L. No. 88-657. § 2 , 78 Stat. 1089 (1964). T he com m ittee reports of

both the H ouse and the Senate indicate that C ongress understood the A tto rney G en eral's opinion to

hold that § 478 was “not to be construed as a statu tory guarantee o f access to priv ate lands within the

national forests." S. Rep. No. 1174, 88th C ong., 2d Sess. 4 (1964); H.R. Rep. N o. 1920. 88th Con g., 2d

Sess. 4 (1964). In the Senate report, the com mittee stated:

It should be expressly noted that this legislation is intended n either to affirm nor to

abrogate the A tto rn ey G eneral’s in terp retation o f the act o f Ju n e 4. 1897 (30 Stat. 36,

16 U.S.C. 478), w ith respect to the act*s assurance or lack o f assurance, conc erning

access to private lands across national forest lands. H ow ever, the predictable efTect o f

this legislation will be to minimize the likelihood o f litigation betw een th e U nited

States and private lando w ners designed to test applications o f the A ttorney G en eral’s

interpretation o f the act o f Ju n e 4, 1897. T his legislation will p rovid e to m ost ow ners

o f private land a satisfactory altern ative to statu tory assurance of access to and from

their lands. T he co m m ittee therefo re recom m ends enactm ent o f the act as am ended.

A m endm ents w hich w ould have crea ted a statu to ry right of access w ere rejected both in com m ittee

(S. Rep. No. 1174, at 8) and on the Senate floor. 110 C ong. Rec. 16.413-15 (1964).

37

As the Supreme Court pointed out in United States v.

Grimaud, 220 U.S. 506, 516-17, it is your function to

determine what private use of the national forests in any

given case is consistent with the purposes sought to be

attained by the statute. The imposition of harsh and oner

ous requirements not related to the benefit received or to

your general responsibility to preserve and manage the

national forests, might well constitute an abuse of

discretion.

42 Op. Att’y Gen. at 147.

Your department argues that it has a long-standing policy that the

Secretary is without discretion to deny access under § 478, and that a

change in this policy would have a drastic effect on the well-established

expectations of landowners within the national forests. It is a familiar

principle that interpretations made contemporaneously with the enact

ment of a statute and consistently followed for a long period are

entitled to great weight, particularly if they have been relied on by the

public. See Zuber v. Allen, 396 U.S. 168, 192-93 (1969); Alaska S.S. Co.

v. United States, 290 U.S. 256, 262 (1933); Norwegian Nitrogen Products

Co. v. United States, 288 U.S. 294, 315 (1933). Correspondingly, when

an agency’s interpretation has been neither consistent nor long-standing,

the weight given it diminishes accordingly. See Southeastern Community

College v. Davis, 422 U.S. 397, 411-12 (1979); United Housing Founda

tion, Inc. v. Forman, 421 U.S. 837, 858-59 n.25 (1975). Prior to 1962,

your department relied on the first sentence of § 478 to find the same

rights you now find in the second sentence. This 1962 revision of the

department’s interpretation occurred almost 70 years after enactment of

the statute.15

In any case, to the extent that my judgment is governed by the

customary rules of statutory construction, I am guided by the overrid

ing rule that the statute, and not the agency’s interpretation, is conclu

sive. See, e.g., VolksWagenwerk v. Federal Maritime Commission, 390

U.S. 261, 272 (1968). Additionally, I am persuaded by the legislative

history and by the common sense rule that legislative history disclosing

Congress’ intent is entitled to more weight than a conflicting adminis

trative interpretation and must control. See Norwegian Nitrogen Products

Co. v. United States, 288 U.S. 294, 315 (1933); Sutherland, Statutes and

Statutory Construction §49.04 (1973 & Supp. 1975).

In sum, I conclude that § 478 does not grant access rights to private

inholders other than actual settlers. In my opinion, absent a right of

access otherwise granted to the landowner by Congress, you may deny

requested access if such denial will protect the public interest in the

14 In Soriano v. United States. 494 F.2d 681, 683 (9th C ir. 1974), the cou rt declined to give special

deference to a regulation pro m ulgated m ore than 100 years after enactm ent of the statute.

38

land to be traversed. Because you may not arbitrarily deny access to

private landowners, I do not foresee that this interpretation will have a

drastic effect on their expectations.

II.

Your second question is whether an inholder has an easement by

necessity or other implied easement across national forest land. The

conclusion in Part I (that § 478 does not grant a right of access to

private property across national forest reserves, and that, absent an

access right otherwise guaranteed to a landowner by Congress, § 478

allows denial of access) renders apparent the importance of this

question.

In the 1962 opinion, the Attorney General stated that whether an

easement by necessity lies against the government is a complex and

controversial question. While he concluded that it need not be decided

at that time, the Attorney General nonetheless offered his view that

such an easement does not exist over public lands. 42 Op. Att’y Gen.

127, 148. It is also my view that the common law doctrine of easement

by necessity does not apply to congressional disposition of the public

domain. This does not mean, however, that access cannot otherwise be

implied. In my opinion, access may be implied if it is necessary to

effectuate the purpose for which the land was granted.

The doctrine of easement by necessity is a common law property

concept that was recently described by the Supreme Court as follows:

“Where a private landowner conveys to another individual a portion of

his lands in a certain area and retains the rest, it is presumed at common

law that the grantor has reserved an easement to pass over the granted

property if such passage is necessary to reach the retained property.”

Leo Sheep Co. v. United States, 440 U.S. 668, 679 (1979).16 Authoritative

treatises on property law identify three basic prerequisites to the cre

ation of an easement by necessity.17 First, the titles to the two tracts in

question at some time must have been held by one person. This is the

unity-of-title requirement. Second, the unity of title must have been

severed by a conveyance of one of the tracts. Third, the easement must

be necessary in order for the owner of the dominant tenement to use

his land. This necessity must exist both at the time of the severance of

title and at the time of application for the exercise of the easement.18

16 In Leo Sheep, the C o urt considered the question w hether th e U nited S tates had reserved an

easem ent to pass o ver lands w hich had passed from federal ow nersh ip. Y our inquiry, conversely, is

w hether the United States granted an easem ent to a federal land gran tee to pass ov er retained lands to

reach the conv eyed property. T he Leo Sheep case is discussed infra at pages 19-20, note 28.

17 See generally 3 P ow ell on Real P ro p erty § 4 10 (1979); 2 Thom pson on R eal P roperty § 363, at

424-27 (1961 & Supp. 1978); 3 T iffany, Law o f Real P rop erty §793 (3d ed. 1939 Supp. 1979);

C om m ent, Easements By Way o f Necessity Across Federal Lands, 35 W ash. L. R ev. 105, 107 (1960).

18 C ou rts have em phasized various facto rs in applying this doctrine. T h e R estatem ent o f P roperty

§476, lists som e of these factors:

Continued

39

See 3 Powell on Real Property §410, at 34-59 to 34-60 (1979);

Simonton, Ways By Necessity, 25 Colum. L. Rev. 571, 573-79 (1925).

Whether this doctrine applies to the government has not been resolved.

Courts and commentators have differed.19

To determine whether the doctrine applies to property of the federal

government, it is necessary to determine what law controls. Here fed

eral law must control. The Constitution vests in Congress alone author

ity to dispose of and make needful rules concerning the public domain.

U.S. Const., Art. IV, § 3, cl. 2. As I have noted earlier in this opinion,

this power is vested in Congress “without limitation.” United States v.

Gratiot, 39 U.S. (14 Pet.) 526, 537 (1840). See also Kleppe v. New

Mexico, 426 U.S. 529, 536 (1976); United States v. San Francisco, 310

U.S. 16, 29-30 (1940). The construction of grants by the United States

has been held to be a federal, not a state, question. United States v.

Oregon, 295 U.S. 1, 27-28 (1935), Packer v. Bird, 137 U.S. 661, 669

(1891).20 With regard to implying an easement across land which the

United States still holds in trust for the public, therefore, federal law

must control. Utah Power & Light Co. v. United States, 243 U.S. 389,

404 (1917).21 Federal property can be made subject to state law only

when congressional authorization is clear and unambiguous. See EPA v.

California ex rel. State Water Resources Control Bd., 426 U.S. 200, 211

(1976); Kleppe v. New Mexico, 426 U.S. 529, 536 (1976).

(a) w heth e r (he claim ant is the co n vey o r o r th e co nveyee; .

(b) the term s o f the conveyance:

(c) th e consideratio n given for it:

(d) w heth er the claim is m ade against a sim ultaneous conveyee;

(e) the extent o f the necessity;

(0 w heth e r reciprocal benefits result to the con v e y or o r conveyee;

(g) the m anner o f use o f the land before conveyance:

(h) the extent to w hich prior use w as known.

19See. e.g.. United States v. D unn. 478 F .2d 443 (9th Cir. 1973) (holding, w ith one jud g e dissenting,

that the d o ctrine is applicable); Sun Studs. Inc.. 83 I.D . 518 (1976) (holding that the doctrin e is not

applicable). Some com m en tators state th at w ays o f necessity do not arise against the sovereign. 2 G.

T h om pson , C om m entaries on the L aw o f Real P roperty § 362, at 417 (1961); Jones on Easem ents

§301, at 247 (1898). O thers conclu d e that the d o ctrine should be applicable. 3 Powell on Real

P roperty § 4 10 at 34-73 to 34-74 (1979); 3 Tiffany, Law o f Real P roperty § 793 (3d ed. 1939).

20 W hen, h o w ever, the land has passed from federal ow nership , it becom es subject to the law s o f

the state in w hich it is located. See Oregon ex rel. State Lan d Bd. v. Corvallis Sand <& Gravel Co.. 429

U.S. 363, 372 (1977). It follows, therefore, that w here title to both a d om inant and servient tenem ent

has passed from federal ow nersh ip, th e question w heth e r the unity-of-title requirem ent is satisfied by

prior g o vern m ent ow nership is a question o f state law. State co u rts have reached differing opinions on

this question. C ourts in C alifornia, F lorida, Indiana, O klahom a, Tennessee, and Texas have concluded

that unity o f title cannot be based on p rior g overn m ent ow nership. Bully H ill Copper M ining &

Sm elting Co. v. Bruson. 4 Cal. A pp. 180, 87 P. 237, 238 (1906); G uess v. Azar. 57 So. 2d 443, 444 (Fla.

1952); Continental Enterprises Inc. v. Cain, 296 N .E.2d 170, 171 (Ind. 1973); D udley v. Meggs, 153 P.

1121, 1122 (O kla. 1915); Pearne v. Coal Creek Min. & Mfg. Co.. 90 Tenn. 619, 627-28, 18 S.W . 402-04

(1891); Sta te v. Black Bros.. 116 Tex. 615, 629-30, 297 S.W . 213, 218-19 (1927). C ourts in A rkansas,

M issouri and M ontan a have reached the opposite conclusion. Arkansas State H ighw ay C o m m'n v.

Marshall. 485 S.W .2d 740, 743 (A rk. 1972); Snyder v. Warford, 11 M o. 513, 514 (1848); Violet v.

M artin. 62 M ont. 335, 205 P. 221, 223 (1922).

21 T he rules ado pting state law to determ ine w hat riparian rights pass in a federal grant are not

applicable to the question o f ways across federal land. Utah Power & L ight Co. v. United States. 243

U.S. 389, 411 (1917). See Oregon ex rel. Sta te L an d Bd. v. Corvallis Sand <£ Grave! Co.. 429 U .S. 363,

372 (1977); United States v. Oregon. 295 U .S. 1, 27 (1935); H ardin v. Jordan. 140 U.S. 371 (1891).

40

To determine what rights have passed under federal law, it is neces

sary to interpret the statute disposing of the land.22 It is a recognized

principle that all federal grants must be construed in favor of the

government “lest they be enlarged to include more than what was

expressly included.” United States v. Grant River Dam Authority, 363

U.S. 229, 235 (1960); United States v. Union Pac. Ry., 353 U.S. 112, 116

(1957).23 In Pearsall v. Great No. Ry., 161 U.S. 646, 664 (1895), the

Court wrote: “Nothing is to be taken as conceded . . . but what is

given in unmistakeable terms, or by an implication equally clear. . . .”

These general rules must not be applied to defeat the intent of Con

gress, however. The Supreme Court has stated that public grants are

“not to be construed as to defeat the intent of the legislature, or to

withhold what is given either expressly or by necessary or fair

implication. . . .” United States v. Denver & Rio Grande R.R., 150 U.S.

1, 14 (1893). In all cases, the intent of Congress must control. Id. See

also Missouri, K. & T. Ry. v. Kansas Pac. Ry., 97 U.S. 491, 497 (1878).

These rules dictate that if it is clear that Congress intended to grant

access, such access must be acknowledged, its scope consistent with the

purposes for which the grant was made.24 An implied easement defined

by the actual intent of Congress must be distinguished from an ease

ment by necessity, which relies on a presumed intent of the parties.

There are no clear uniform rules for determining the scope of an

easement by necessity. In some cases, it has been held that the scope

includes whatever access is necessary for any reasonable, beneficial use

of the dominant tenement, not merely the use for which the grant was

made. See, e.g., New York Cent. R.R. v. Yarian, 219 Ind. 477, 39 N.E.2d

604, 606 (1942); Soltis v. Miller, 444 Pa. 357, 283 A.2d 369, 370-71

(1971); Meyers v. Dunn, 49 Conn. 71, 78 (1881); Whittier v. Winkley, 62

N.H. 338, 339-40 (1882); Jones on Easements § 323 (1898). Since the

common law doctrine is based on the presumed intent of the parties, its

operation may have the effect of disregarding or possibly frustrating the

intention of the grantor, absent express language in the conveyance

denying an easement. 2 G. Thompson, Law of Real Property § 362

(1961), citing Lord v. Sanchez, 136 Cal. App. 2d 704 289 P.2d 41 (1955);

Moore v. Indiana & Michigan Elec. Co., 299 Ind. 309, 95 N.E.2d 210

(1950). Thus, if the doctrine were allowed to operate where the Gov

ernment is the grantor, the actual intent of Congress would, at the least,

23 W e n ote that you r departm ent, w ithoul reaching the easem ent-by-necessity issue, has concluded

that an examination o f the granting statute is essential to determ inin g access rights. See M em orandum :

A ccess to State and Private Inholdings in N ational Forests at 18, U.S. D ept, o f A gricultu re (O ct. 31,

1979).

23 See also C am field v. U nited States, 167 U.S. 518, 524-26 (1897); U nited States v. Clarke, 529 F.2d

984, 986 (9th Cir. 1976).

2*See Curtin v. Benson. 222 U.S. 78, 86 (1911). In U nited States v. 9.947.71 Acres. 220 F. Supp. 328,

331 (D . Nev. 1963), the court recognized an im plied access right for mining purposes w here a m ining

claim ow ner had to cross public dom ain to reach his claim . C f Arizona v. California, 373 U.S. 546,

599-600 (1963); W inters v. U nited States, 207 U.S. 564, 575-77 (1908). These cases recognize an im plied

reservation o f w ate r rights for Indian reservations.

41

become irrelevant, and, in some cases, would be thwarted. Plainly, the

application of the common law doctrine would be inconsistent with the

established principles that the intent of Congress in disposing of federal

land must control, and that rights in government land cannot be pre

sumed to pass by implication.25

The doctrine of easements by necessity was developed to settle

disputes between private parties, not disputes involving the federal

government.26 The federal government has at one time held title to

over three-fourths of the territory of the United States; it today retains

title to approximately one-third of the nation’s land. One-Third of the

Nation’s Land: A Report to the President and to Congress by the

Public Land Law Review Comm’n, at 8 (1970). It holds property as

sovereign, as well as proprietor, and exercises power beyond that

which is available to a private party. Kleppe v. New Mexico, 426 U.S.

529, 539 (1976); Light v. United States, 220 U.S. 523, 536-37 (191 1).

Throughout its history, statutes have been enacted allowing access

across its land.27 It holds land in trust for all the people and in dispos

ing of it is concerned with the public interest. Utah Power & Light Co.

v. United States, 243 U.S. 389, 409 (1917); Causey v. United States, 240

U.S. 399, 402 (1916). In Causey, the Court wrote that “the Government

in disposing of its public lands does not assume the attitude of mere

seller of real estate at its market value.” Id.

For these reasons, other doctrines applicable to private landowners

have been held inapplicable to the sovereign. In Jourdan v. Barrett, 45

U.S. (4 How.) 169, 184-85 (1846), the Supreme Court held that no

prescriptive rights may be obtained against the sovereign, and in Field

v. Seabury, 60 U.S. (19 How.) 323, 332-33 (1856), the Court held that

government patents may not be collaterally attacked as can grants from

a private party. In United States v. California, 332 U.S. 19 (1947), the

25 It is no te w on h y th at since the A ttorn e y G eneral opined in 1962 that the doctrin e of easem ents by

necessity w as not enforceable across federal land, C ongress has not m odified th e rule. A lthough this

generally is not stro n g evidence w hen there is no indication that C ongress w as aw are o f the ruling

(Z uber v. Allen, 396 U.S. 168, 194 (1969)), it is more persuasive w hen, as here, congressional action

directly resulted from the opinion. See n.14, supra. See generally Bean v. Ledm ar. 368 U.S. 403, 412-13

(1962); United States v. Midwest Oil Co.. 236 U.S. 459, 481 (1915).

26T h e do c trin e has been traced to early English origins. Sim onton, Ways o f Necessity, 25 Colum . L.

Rev. 571, 572-78 (1925). It usually has been predicated on public policy favorin g land utilization and a

presum ption of intent. 3 P ow ell on Real P ro p erty §41 0 at 34-59 to 34-60 (1979).

21 See. e.g.. A ct o f M arch 3, 1875, ch. 252, § 1, 18 Stat. 482 (repealed 1976) (right o f w ay for

railroads); A ct o f M arch 3, 1891, ch. 561, § 18 (rep ealed 1976) (right o f w ay for irrigation ditches and

canals); A ct o f Jan. 21, 1895, ch. 37, § I (repealed 1976) (right o f w ay for tram rods, canals, and

reservoirs); A ct o f July 26, 1866, ch. 262, § 8, 14 Stat. 253 (rep ealed 1976) (rig ht of way for highw ays).

These statutes w ere repealed by the F ederal Land Policy and M anagem ent A ct o f 1976 (F L P M A ),

Pub. L. No. 94-579, §§ 501-511 , 90 Stat. 2776-82 (codified at 43 U .S.C. §§1761-1771). F L PM A

provides, w ith certain exceptions, that rights o f w ay across governm ent land can only be obtained as

pro vided in that A ct. 43 U .S.C J770. G eneral and com preh ensive legislation, prescribing a course of

co n d u c t to be pursued and the parties and things affected, and specifically describing lim itations and

exceptions, is indicative of a legislative intent that the statute should to tally supersede and rep lace the

com m on law dealing w ith the subject m atter. Isbrandtsen Co. v. Johnson. 343 U.S. 779, 787-88 (1952);

Sneel v. Ruppert, 541 P.2d 1042 (W yo. 1978); J. Suth erland, S tatutes and S tatuto ry C onstruction

§ 50.05 (1973 & Supp. 1978).

42

Court refused to hold that the federal government had forfeited by

laches or estoppel its interest in littoral property, stating: “The Govern

ment, which holds its interests here as elsewhere in trust for all the

people, is not to be deprived of those interests by the ordinary court

rules designed particularly for private disputes over individually owned

pieces of property. . . Id. at 40.

These same reasons lead me to conclude, as did the Court in Leo

Sheep, that the doctrine of easements by necessity as applicable to

federal lands is “somewhat strained, and ultimately of little signifi

cance” and that the “pertinent inquiry . . . is the intent of Congress.” 28

A grantee is entitled instead to reasonable access across government

land to use his property, for the purposes for which the land grant was

made, if such an access right either expressly or impliedly arises from

the act authorizing the land grant.29

To interpret correctly congressional intent underlying a statutory

land grant, it is necessary to look at the condition of the country when

the grant was made, as well as the declared purpose of the grant. Leo

Sheep Co. v. United States, 440 U.S. 668, 682 (1979); Winona & St. Paul

R.R. v. Barney, 113 U.S. 618, 625 (1885); Platt v. Union Pacif. R.R., 99

U.S. 48, 64 (1878). In Superior Oil Co. v. United States, 353 F.2d 34 (9th

Cir. 1965), for example, the court looked to the purpose of the grant

and concluded that the scope of the implied access was not broad

enough to include the type of entry sought. The plaintiff oil company

was a lessee of a religious mission which had received a land patent to

facilitate and encourage its activities among the Indians. The land in

question was surrounded by the Hopi Reservation, which the United

States held in trust for the Indians. The issue on appeal was whether

28In Leo Sheep Co. v. United States. 440 U.S. 668 (1979), the C ourt, in holding that the federal

governm ent does not have a reserved easem ent by necessity across the land o f its grantee o r its

grantee's successor, w rote:

First o f all, w hatev er right o f passage a p rivate lan d o w ner m ight have, it is not at all

clear that it w ould include the right to construct a road for public access to a

recreational area. M ore im portantly, the easem ent is not actually a m atte r o f necessity

in this case because the G overn m en t has the pow er of em inent domain. Jurisdictio ns

have generally seen em inent dom ain and easem ents by necessity as alternative ways to

effect the sam e results. . . . [SJtate courts have held that the “easem ent by necessity”

doctrine is not available to the sovereign.

Id. at 679-81 (footnotes om itted). O f course, the opinion in Leo Sheep is not alone dispositive o f the

question you have asked. It involved a claim by the governm ent grantor, not the private grantee, o f an

easem ent by necessity. T h e C ourt there did rely substantially on the pow er o f em inent dom ain, and

was careful not to decid e the broad er question of the availability of the easem ent-by-necessity doctrine

generally. In an earlier case refusing to find a reserved w ay o f necessity for a public easem ent across

private land, a district court stated m ore broadly: ‘i t is, in my ju d g m ent, very doubtful w h eth e r the

doctrine o f ways o f necessity has any application to grants from the generaI G overn m en t under the

public land law s." U nited States v. Rindge, 208 F. 611, 618 (S.D . Cal. 1913). See also. Sun S tud s Inc., 83

I.D . 518 (1976). B ut see, Bydlon v. United States. 175 F. Supp. 891 (C t. Cl. 1959); M ackie v. United

States. 195 F. Supp. 306 (D . M inn. 1961).

29 O f course, even w ith o u t such an entitlem ent, a landow ner may apply for an easem ent perm it

un der p ro ced u re s established pursuant to oth e r statutes. See F L PM A , 43 U .S.C 1761-1771; A ct o f

O cto b e r 13, 1964, 16 U.S.C. 532 et seq. It cannot be assum ed that Congress, o r federal regulatory

authorities, will execu te th eir pow er in such a w ay as to bring about injustice. See U nited States v.

California, 332 U.S. 19, 40 (1947).

43

the oil company was entitled to move heavy equipment across the

reservation to drill for oil on the leased property. In ruling that access

was limited to the scope of the grant, the court stated:

Certainly it cannot be said either that public policy de

mands or that the Indians’ trustee impliedly intended a

grant of a way of access across Indian lands greater in

scope than was required for mission purposes and whose

greater scope was necessary only in order to permit the

granted lands to be used in a fashion adverse to the

interests of the Indians.30

Although some courts that have dealt with this issue have written in

terms of easements by necessity, most of them in effect have looked at

the grant in question and limited access according to the purpose of the

grant. The Superior Oil case was relied on by the Tenth Circuit in

Kinscherff v. United States, 586 F.2d 159 (10th Cir. 1978), which held:

An easement by necessity for some purposes could possibly

have arisen when the United States granted the patent to

plaintiffs’ predecessor in interest. . . . While nothing ordi

narily passes by implication in a patent, Walton v. United

States, 415 F.2d 121 (10th Cir.), an implied easement may

arise within the scope of the patent.

Id. at 161 (emphasis added).

Similar statements appear in Utah v. Andrus, (unreported) C 79-0037

(D. Utah Oct. 1, 1979), in which Utah claimed an easement by neces

sity for access to its school grant lands. Relying on United States v.

Dunn, 478 F.2d 443, 444 n.2 (9th Cir. 1973), the district court con

cluded: “Although this common law presumption might not ordinarily

apply in the context of a Federal land grant, the liberal rules of

construction applied to school trust land allowed for the consideration

of this common law principle and justify its application here.” 31 The

30T h e co u rt, in effect, crea ted a hybrid doctrine, apply ing principles of both w ays of necessity and

w ays crea ted by the actual intent o f the granto r:

A ppellant's position is sim ply th at since the patent for the M ission w as in unrestricted

fee simple it carried w ith it by im plication a w ay o f necessity over lands of the United

States for all purposes to which the conveyed land m ight law fully be put.

Such is not the law. T he scope and extent o f th e right o f access depends not upon the

state o f title o f th e do m inant estate, nor th e existence or lack o f lim itations in th e grant

o f that estate, but upon w hat m ust, under th e circum stances, be attributed to the

gra n to r eith er by im plication o f intent o r by operation o f law founded in a public

policy fav oring land utilization.

Superior O il Co. v. U nited Stales, 353 F.2d 34, 36-37 (9th Cir. 1965).

31 Slip Op. at 8. In U nited States v. Dunn, 478 F.2d 443 (9th C ir. 1973), the U nited States sought an

injunction to prev ent D unn, w ho held title as a grantee o f a railroad, from constructing an access road

for com m ercial and residential d evelopm ent o f his land. T he d istrict cou rt gran ted partial sum m ary

ju d gm en t, ho lding defendan ts trespassers and the go v ernm en t entitled to im m ediate possession. T he

N inth C ircuit reversed, holding that sum m ary judgm en t w as preclu d ed because defendants raised the

factual issue w hether they had an easem ent by necessity. Id. at 446. T he Dunn co urt's only discussion

o f th e application o f th e d o ctrin e, h o w ever, ap peared in a fo o tnote response to th e dissenting judg e . In

the dissent. Judg e W right stated sim ply that he "w ould hold that under th e facts o f this case the

Continued

44

court went on to hold that this right is not absolute, however. It

reasoned:

Under the Constitution Congress has the authority and

responsibility to manage Federal land. U.S. Const, art. IV,

§ 3, cl. 2. . . . There is nothing in the school land grant

program that would indicate that when Congress devel

oped the school land grant scheme it intended to abrogate

its right to control activity on Federal land. Further, it is

consistent with common law property principles to find

that the United States, as the holder of the servient tene

ment, has the right to limit the location and use of Utah’s

easement of access to that which is necessary for the

state’s reasonable enjoyment of its right. . . . Thus, the

court holds that, although the State of Utah or its lessee

must be allowed access to section 36, the United States

may regulate the manner of access under statutes such as

FLPMA.

Slip Op. at 21.

Cases like Superior Oil, Kinscherff, and Utah v. Andrus lend support

to my conclusions with respect to implied rights to access across

federal land. While the common law easement by necessity does not

run against the United States, a right to access may nonetheless be

implied by reference to particular grants. And, to the extent that such

implied rights exist, your broad authority—delegated to you by Con

gress—to manage forest reserves empowers you to regulate their exer

cise. See United States v. Perko, 108 F. Supp. 315, 322-23 (D. Minn.

1952), affd, 204 F.2d 446 (8th Cir.), cert, denied, 346 U.S. 832 (1953);

Perko v. Northwest Paper Co., 133 F. Supp. 560, 569 (D. Minn. 1955).

Determining what implied rights exist in the numerous federal land

grants is beyond the scope of this opinion. As set forth above, this

determination depends on when the grant was made and for what

purpose. Mindful of the goal of giving effect to legislative intent, you

must look to the rules the Supreme Court has adopted for interpretation

of federal land grants. As discussed previously, land grants generally

are to be strictly construed. This rule must be balanced against the

conflicting rule that in some situations, certain types of land grants may

deserve a more liberal construction because of the circumstances sur

rounding passage of the statutes in question. See generally Leo Sheep Co.

v. United States, 440 U.S. 668, 682-83 (1979) (railroad land grants);

doctrine o f easem ent by necessity is not binding on the U nited States. . . Id. at 446. T he m ajority

responded;

Since the G ov ernm ent did not, in ou r judgm ent, raise the point upon w hich Judge

W right bases his dissent, w e h ave not discussed it in the opinion, but nevertheless did

give it consideration and concluded that it lacked merit.

Id. at 444 n.2. I do not find this case persuasive au thority for applicatio n o f the doctrine.

45

Wyoming v. United States, 255 U.S. 489, 508 (1921) (state school land

grants). Absent express language to the contrary, however, a grant

should not be construed to include broad rights to use retained govern

ment property, particularly in the case of gratuitous grants. See United

States v. Union Pac. R.R., 353 U.S. 112 (1957); Camfield v. United

States, 167 U.S. 518 (1897); Wisconsin Central R.R. v. United States, 164

U.S. 190 (1896); 30 Op. Att’y Gen. 263, 264 (1941).

Once the right, if any, is found to exist, you should consider how

that right reasonably should be regulated to protect the public’s interest

in federal property. It is beyond dispute that such rights are subject to

reasonable regulation without a resulting inverse condemnation. See

generally Johnson v. United States, 479 F.2d 1383 (Ct. Cl. 1973) (restric

tion of access by erection of fence enclosing extended portion of high

way held not a taking); 2 Nichols on Eminent Domain § 5.72[1] (1978).

Nonetheless, fewer restrictions properly may be imposed on well

established, developed uses than on unexercised rights. See Penn Central

Transp. Corp. v. City of New York, 438 U.S. 104 (1978); Euclid v. Amber

Realty Co., 272 U.S. 365 (1926). Frustration and appropriation are

essentially different things. United States v. Grand River Dam Authority,

363 U.S. 229, 236 (1960), citing Omnia Co. v. United States, 261, 502,

513 (1923).

III.

Your third question is whether any act of Congress has modified any

implied rights that may accompany federal grants. Of particular con

cern are the Wilderness Act, 16 U.S.C. §§1131-1136, and various

wilderness study acts.32 See, e.g., Montana Wilderness Study Act of

1977, Pub. L. No. 95-150, 91 Stat. 1243; Sheep Mtn. and Snow Mtn.

Wilderness Areas, et al., Pub. L. No. 94-557, § 3, 90 Stat. 2635 (1976).

These wilderness study acts require you to exercise your discretion so

as to preserve the wilderness character of the land.33 If a request for a

particular mode of access would destroy that wilderness character,

therefore, you must deny the request. These acts also provide, how

ever, that their mandates are subject to “existing private rights.” 34 See,

e.g., Montana Wilderness Study Act, § 3(a), 16 U.S.C. § 1132 note. You

must determine, therefore, what implied access rights are guaranteed in

a particular grant, and allow the exercise of those rights. The wilder

32 T he im pact of the W ilderness A ct is discussed in Part IV.

33 See Parker v. U ntied States. 448 F.2d 793 (10th Cir. 1971), cert, denied sub. nom., Kaibab Industries

v. Parker, 405 U.S. 989 (1972) (held S e cre ta ry’s discretio n to enter into the tim ber harvesting contract

for public land is limited by 16 U.S.C. § 1132(b)).

34 In addition to “ existing p riv a te rights,*' the W ilderness A ct perm its ingress to and egress from

m ining locations until D ecem ber 31, 1983. 16 U.S.C . § 1133(d)(3). Such ingress and egress is subject to

reasonable regulation by th e Secretary o f A gricultu re, consistent w ith use o f the land for mineral

explo ration, location, developm ent, pro d u ctio n , and related purposes.

46

ness study acts thus do not modify any implied rights that may accom

pany federal grants.

Nor do I find that the other statutes you cite modify such implied

rights. The Organic Act of 1897, 16 U.S.C. §478, discussed at length in

Part I of this opinion, preserves access rights existing at the time of

creation of a forest reserve. The Act of October 13, 1964, 16 U.S.C.

532-538, which authorizes the Secretary of Agriculture to grant ease

ments for road rights-of-way over lands administered by the Forest

Service,35 was passed in reaction to Attorney General Kennedy’s 1962

interpretation of 16 U.S.C. §478, which, as discussed earlier, allowed

the imposition of a reciprocity requirement with respect to rights-of-

way. By empowering the Secretary of Agriculture to grant permanent

easements, the Congress hoped to provide an alternative to statutory

assurance of access to and from private inholdings.36 Thus, the statute

does not substantively modify implied rights of access. It does, along

with FLPMA, allow the imposition of certain procedural requirements,

such as application for a permit prior to road construction. We have

found no other statute that substantively modifies implied access rights.

IV.

Your final question concerns § 5(a) of the Wilderness Act, 16 U.S.C.

1134(a). Your department has concluded that this provision guarantees

a private owner “adequate access” to an inholding unless the land

owner voluntarily chooses a land exchange. Pursuant to this interpreta

tion, regulations have been promulgated providing that access “shall be

given.” 37 The Department of the Interior has taken the position that

§ 5(a) grants the Secretary of the Interior (and, by analogy, the Secre

tary of Agriculture) the authority to deny access to a landowner, and

3516 U.S.C. § 533. See p. 10 & note 13 supra. T his statute was not repealed by F L P M A . W ith

respect to the Secretary of A gricu lture’s authority under §§ 532-538, FL P M A provided:

[N ]othing in this su b chapter shall be constru ed as affecting or m odifying the provisions

o f sections 532 to 538 o f title 16 and in th e event o f conflict w ith, or inconsistency

betw een, this subch apter and sections 532 to 538 o f title 16, the la tter shall prevail:

Provided further. T hat n othing in this A ct should be co nstrued as making it m andatory,

that, w ith respect to forest roads, the Secretary o f A gricu lture limit rights-of-w ay

grants or their term s o f years o r require disclosure pursuant to section 1761(b) o f this

title o r im pose any oth er condition co ntem plated by this A ct that is co ntrary to present

practices of that S ecretary und er sections 532 to 538 o f title 16.

43 U.S.C. § 1770(a).

36 S. Rep. N o. 1174, 88th Cong., 2d Sess. 4 (1964). See note 10 supra.

3736 C .F .R . § 293.12. This regulation provides in part:

States o r persons, and their successors in interest, w ho ow n land com pletely sur

rounded by N ational Forest W ilderness shall be given such rights as may be necessary

to assure adequ ate access to the land. “ A dequ ate access” is defined as the com bination

o f routes and m odes o f travel w hich will, as determ ined by th e F orest Service, cause

the least lasting im pact on the prim itive ch a ra cter o f the land and at the sam e tim e will

serve the reasonable purposes for w hich th e State and private land is held or used.

This regulation is consistent w ith your d ep a rtm ent’s interpretation o f 16 U .S.C. §478. See 36 C .F.R .

§ 212.8(b).

47

offer land exchange as indemnity.38 The Interior Department’s interpre

tation, contrary to yours, under appropriate circumstances would allow

denial of “adequate access” to private holdings as well as to state-

owned inholdings.

Some initial observations about the Wilderness Act are in order. The

purpose of the Wilderness Act is to “secure for the American people of

present and future generations the benefits of an enduring resource of

wilderness.” 16 U.S.C. § 1131(a). “Wilderness” is defined as an area of

“undeveloped Federal land retaining its primeval character and influ

ence, without permanent improvements or human habitation.” 16

U.S.C. § 1131(c). Section 4(c) of the Act prohibits, with limited excep

tions, use of motor vehicles or other mechanical transportation. 16

U.S.C. § 1133(c). It also prohibits permanent roads within any wilder

ness area, except as specifically provided in the Act, and subject to

“existing private rights.” Id. The Act directs you to administer wilder

ness areas within your jurisdiction so as to preserve their wilderness

character. 16 U.S.C. § 1133(b). The phrase “existing private rights” in

§ 4(c), 16 U.S.C. § 1133(c), is not defined in the Act or in its legislative

history, but, in my opinion, includes existing easements, which are well-

recognized rights in property.39 Thus, in spite of the Act’s general

prohibitions, if a private inholder has an implied right to a particular

type of access, that right is preserved.

The Wilderness Act was developed over a 15-year period, with

almost unprecedented citizen participation. See S. Rep. No. 109, 88th

Cong., 1st Sess. 7 (1963). The first major wilderness bill was introduced

in the 85th Congress. S. 1176, 85th Cong., 1st Sess. (1957). In 1961, the

Senate passed a wilderness bill, S. 174, but the House failed to pass it.

38 Supplem ental M em orandum In Support o f PlaintifTs M otion for Perm anent Injunction, at 14-19,

United States v. Cotter Corp., No. C 79-0307 (D . U tah O ct. 1, 1979). T he cu rrent regulation o f the

Inte rio r D epartm en t’s Fish and W ildlife Service, 50 C .F .R . 35.13, althou gh som ew hat am biguous,

restricts access to m eans and routes w hich will “ preserve the w ilderness ch aracte r o f the area.” T he

regulation provides:

R ights o f States or persons and th e ir successors in interest, w hose land is surro unded

by a w ilderness unit, w ill be recog nized to assure adequate access to that land.

A deq u ate access is defined as the com bination o f m odes and routes o f travel w hich

will best p reserve th e w ilderness chara c te r of th e landscape. M odes o f travel d esig

nated shall be reasonable and consistent w ith accepted, conve ntional, co ntem porary

m odes o f tra v el in said vicinity. U se will be consistent w ith reasonable purposes for

w hich such land is held. T he D ire c to r will issue such p erm its as are necessary for

access, designating the m eans and route s o f travel for ingress and degress (sic) so as to

preserve the w ildern ess chara c te r o f th e area.

395ee, e.g.. United States v. Welch, 217 U.S. 333, 339 (1910); M yers v. U nited States, 378 F.2d 696,

703 (C t. C l. 1967). It logically could be argued that the phrase “existing private rights'' includes and

preserves only those rig hts which had been exercised at the tim e the W ilderness A ct was passed. L ittle

support exists, how ev er, for this argum en t that C on gress intended to extinguish unexercised access

rights, leaving th e landow ner w ith on ly the right to access or exchan ge under § 5(a). W hen providin g

for preserv ation only o f established uses, C ongress clearly so indicated. See 16 U.S.C. § 1133(d)(1)

(perm itting established uses o f aircraft and m otorboats). In S. R ep. No. 109, 88th Cong., 1st Sess. 2

(1963), the com m ittee stated that u n d er the W ilderness P reservation System , “existing p rivate rights

and established uses" are perm itted to continue. (Em phasis added .) A way o f access to w hich a person

is entitled by express o r im plied grant pred ating th e W ilderness A ct is a right w hich existed p rio r to

the effective d a te o f the A ct, w heth er exercised or unexercised.

48

In 1963, S. 4 was introduced in the 86th Congress. It was identical to

S. 174, with one exception not relevant here. It passed the Senate by a

large margin (110 Cong. Rec. 17,458 (1964)), but was amended in the

House (110 Cong. Rec. 17,461 (1964)). A conference committee was

convened and adopted with few amendments the House version of the

bill, H.R. 9070. See H.R. Rep. No. 1829, 88th Cong., 2d Sess. (1964).

The conference bill was approved by both Houses (110 Cong. Rec.

20,603, 20,632 (1964)) and signed by the President on September 3,

1964.

Section 5(a) of the Act deals with state and private property com

pletely surrounded by wilderness areas. It provides:

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

necessary to assure adequate access to such State-owned

or privately owned land by such State or private owner

and their successors in interest, or the State-owned land

or privately owned land shall be exchanged for federally

owned land in the same State of approximately equal

value under authorities available to the Secretary of Agri

culture: Provided, however, that the United States shall

not transfer to a State or private owner any mineral

interests unless the State or private owner relinquishes or

causes to be relinquished to the United States the mineral

interest in the surrounded land.

Since the enactment of the Wilderness Act, your department has inter

preted this language to preserve the statutory right of access you found

in 16 U.S.C. § 478.40 Because, in my opinion, §478 does not grant a

right of access to inholders other than actual settlers, the question

presented here is whether § 5(a) grants to inholders a broad right of

“adequate access” beyond any existing private rights. I believe it does

not.

The term “adequate access” is not defined in the Act, but the legisla

tive history makes clear that the term includes access not consistent

with wilderness uses.41 For example, in both the Senate and House

40See note 37 supra.

41 O th e r sections apply to uses consistent w ith w ilderness preservation. In § 5(b), 16 U.S.C.

§ 1134(b), C ongress provided that w here valid mining claim s or o th er valid o ccu p ancies are sur

rounded by a national forest w ilderness area, the Secretary of A griculture shall, by reasonable

regulations consistent w ith the preservation o f the area as w ilderness, perm it ingress to and egress

from such surrounded areas by means w hich h ave been or are being custom arily enjoyed w ith respect

to sim ilarly situated areas. Cf. 16 U.S.C. § 1133(d) (provides fo r regulation o f ingress and egress

consistent w ith use o f land for m ineral exploration and developm ent). S ection 5(b) did not app ear in

either S. 174 o r S. 4. It did appear in several early H ouse versions o f the bill, and th ese versions

expressly included “ privately ow ned lands" in addition to valid mining claim s and o th er valid

Continued

49

debates, repeated references were made to road construction for motor

ized vehicles. See, e.g., 107 Cong. Rec. 18,105 (1961); 109 Cong. Rec.

5,925-26 (1963). Accordingly, your regulation defining “adequate

access” does not limit access to established uses or to means consistent

with wilderness uses. It includes access which “will serve the reason

able purposes for which the state and private land is held or used.” 42

What constitutes adequate access will depend on the facts and circum

stances of each case, and is a determination left to your discretion.

The Act requires that the state or private inholder be given such

rights as are necessary to assure adequate access, or that the land be

exchanged for federally owned land of approximately equal value. The

language of § 5(a) indicates that a landowner has a right to access or

exchange. If he is offered either,, he has been accorded all the rights

granted by the statute. If you offer land exchange, the landowner has

no right of access under § 5(a). This interpretation is supported by the

legislative history of the section.43

The language of § 5(a) first appeared in an amendment to S. 174, 87th

Cong., 1st Sess. (1961). Senator Bennett of Utah proposed the amend

ment in response to concerns of the Western Association of State Land

Commissioners, and, accordingly, the amendment pertained only to

state-owned land. 107 Cong. Rec. 18,092 (1961).44 The Senator identi

fied a series of “loopholes” in the bill. He described the 13th loophole

as follows: “No provision is made in S. 174 to preserve the right of

occupancies. T his reference to p rivalely ow ned lands w as deleted in later versio ns o f the bill, such as

H.R . 9070. T he rep oris do not explain this deletion. It m ay have o c cu rred because o f th e decision

during the sam e session to include privately o w ned land in § 5(a).

T h e final paragraph o f § 5 , 16 U .S.C. § 1134(c), authorizes you to acquire state or privately ow ned

land only if either the ow ner concu rs o r C ongress specifically authorizes th e acquisition.

42 See 36 C .F .R . § 293.12, note 27 supra.

43 Y our departm ent relies on the legislative history o f subsequent legislation to support its conten

tion that § 5(a) grants a right to adequate access to inholders. In a report filed in conju n ctio n w ith the

Indian Peaks W ilderness A rea, et a l, 16 U.S.C. § 1132 note, the H ouse C om m ittee noted that § 5 of

the W ilderness A ct requires th e Secretary to give private landow ners adequate access. H .R. R ep. N o.

1460, 95th Cong., 2d Sess. 9-10 (1978). T he repo rt does not discuss th e exchange option.

This legislative o bservatio n is not a part o f the legislative history o f the W ilderness A ct. It is the

intent o f th e Congress that enacted a law th at controls interp retatio n o f that law. United Airlines, Inc.

v. M cM ann. 434 U .S. 192, 200 n.7 (1977); Team sters v. United States, 431 U.S. 324, 354 n.39 (1977).

W hatev er ev idence is pro v ided by the rep ort on the subsequent legislation is ov ercom e by conflicting

evidence. See Southeastern C om munity College v. Davis, 442 U.S. 397, 411-12 (1979); Oscar M ayer &

Co. v. Evans, 441 U.S. 750, 758 (1979).

44 T he resolution passed by th e W estern State Land C om m issioners suggested that the bill be

am ended to con tain the follow ing provision:

W hen ever an area including State-ow ned land is incorporated in the wilderness system,

provision shall be m ade for access to such land adequate for the reasonable exercise of

its rights therein by the State and those claim ing under it . . . . P ro vided, h ow ever,

th at, if th e reco m m en d a tio n by w hich an area including S tate-ow ned land is in c o rp o

rated in the w ilderness system shall fail to p rovide for access to the State-ow ned land

therein, then the ow ning State may, at its election, use the included S tate land as base

in m aking indem nity selection o f lands, including the m ineral rights therein as provided

in applicable U.S. statutes.

107 C ong. R ec. 18,103 (1961). T h e resolution illustrates that the Com missioners also believed access

could be denied. T h e indem nity statutes to w hich the resolution refers, 43 U .S.C. 851, 852, allow states

to make indem nity selections w henev er scho ol sections are lost because of o th er reservatio ns or grants

o f the land.

50

access to State school sections or other lands. This should certainly be

done or alternatively, the States should be permitted to choose Federal

lands in another location in lieu of the land isolated within wilderness

areas.” Id. The choice referred to by Senator Bennett was the choice of

lands if access were denied, not the choice of either access or exchange.

He stated that the purpose of his amendment was to “give the States

access to State lands within wilderness areas established under the bill,

or indemnify the States for loss of such access.” 107 Cong. Rec. 18,103

(1961). He did not indicate that a state could choose between access

and indemnity. His amendment provided in part:

In any case where State-owned land is completely sur

rounded by lands incorporated into the wilderness system

such State shall be given (1) such rights as may be neces

sary to assure adequate access to such State-owned land

by such State and its successors in interest, or (2) land in

the same State, not exceeding the value of the surrounded

land, in exchange for the surrounded land. Exchanges of

land under the provisions of this subsection shall be ac

complished in the manner provided for the exchange of

lands in national forests.

107 Cong. Rec. 18,103 (1961). In urging support of his amendment,

Senator Bennett explained:45

[T]he Western Association of State Land Commissioners

unanimously adopted a resolution calling for indemnifica

tion to the States which will lose access to State lands in

wilderness areas established under S. 174. Where State

school sections or other State lands are isolated by wilder

ness areas, the State should be given an opportunity, if

access is denied, to make in lieu selections of Federal lands

in other areas.

Id. (emphasis added).46 These statements demonstrate that Senator

Bennett believed that access not consistent with wilderness preservation

could be denied, and wanted to give states an alternative in such

circumstances.

The Senator later explained that his amendment was designed to

correct problems states had experienced with land exchanges in the

past. 107 Cong. Rec. 18,105 (1961). He wanted to ensure that if the

state land was “locked up,” the state clearly would be entitled to an

exchange. He further explained:

45 A u thority to exchange land is provided by 16 U .S.C . §§485, 486 (originally ena cted as A ct o f

Mar. 20, 1922, ch. 105, 42 Stat. 465) and 16 U .S.C . § 516 (originally enacted as A ct o f M ar. 3, 1925,

ch. 473, 43 Stat. 1215).

46 His belief that access to state-ow ned lands m ay be denied entirely m ay result in part from the

language of § 4 (c), 16 U.S.C. § 1133(c), w hich specifically p ro tected only existing private rights. H e

made no statem ents relying on this language, how ever.

51

The first choice, providing that the State shall have adequate

access, would in fact defeat the value of the wilderness bill,

assuming there were a very valuable mineral in a State

school section, and the State were to decide that it was

worth money to drive a road through the wilderness to

get to it. This would change the situation with respect to

existing law, because we would be imposing particular

restrictions, in spirit at least, with respect to access to the

land.

Id. (emphasis added).

Because of misunderstandings regarding the effect of the proposed

amendment on mineral lands, Senator Bennett withdrew the amend

ment to allow time to confer with other Senators from western states.

He re-offered the amendment the following day, with minor changes

not relevant here. 107 Cong. Rec. 18,384 (1961). Senator Church, who

earlier had expressed reservations about the amendment, now voiced

his support. In his brief remarks, he stated:

I think the amendment is fair to the States involved. If

they need rights of access, they should have them; if they

want to relinquish the land, they ought to have the right

to acquire other land of comparable value.

Id. Although we can infer from these remarks an understanding that

the section gives states the option of choosing access or exchange, the

statement does admit of other interpretations. In light of the evidence

to the contrary, the resolution of this question cannot be rested on the

remarks of one senator during debate on the Senate floor, where “the

choice of words . . . is not always accurate or exact.” In re Carlson,

292 F. Supp. 778, 783 (C.D. Cal. 1968), citing United States v. Internat'l

Union UAW-CIO, 352 U.S. 567, 585-86 (1957). If the Congress had

intended to grant landowners a right to adequate access, it could have

done so expressly. Resolving the doubt in favor of the grantee of such a

right would violate the well-established rule that any doubts as to

congressional grants of property interests must be resolved in favor of

the government. Andrus v. Charleston Stone Prod. Co., 436 U.S. 604, 617

(1978); United States v. Union Pac. R.R., 353 U.S. 112, 116 (1957).

The Senate agreed to Senator Bennett’s amendment to S. 174, but

S. 174 did not pass the House during the 87th Congress. A House

version of the bill did include a similar provision, also applicable only

to state-owned land. The House report on this bill indicated that the

section required only that a state be given either access or exchange; it

did not indicate that the state could choose between them, or that

adequate access otherwise was guaranteed. It stated:

If surrounded land is owned by a State, the State would

be given either right of access or opportunity of exchange.

52

. . . Ingress and egress would be provided for all valid

occupancies.

H.R. Rep. No. 2521, 87th Cong., 2d Sess. 108 (1962) (emphasis added).

Variations of Senator Bennett’s amendment appeared in both the

Senate and House versions of the wilderness legislation in the 88th

Congress. S. 4, 88th Cong., 1st Sess. § 3(j) (1963); H.R. 9070, 88th

Cong., 2d Sess. § 6(a) (1964). The Senate committee report on S. 4

indicates that the understanding that states could be denied access and

offered a land exchange as indemnity remained unchanged:

Section 3(j) provides that where State inholdings exist

in wilderness areas, the State shall be afforded access, or

shall be given Federal lands in exchange of equal value.

The amendment is an attempt to clarify the intention of

the Senate in regard to section 3(j), which was originally

proposed, withdrawn, revised, again proposed and

adopted during floor consideration of S. 174 in 1962 [sic].

The amended section represents a more deliberate and

careful drafting and consideration.

S. Rep. No. 109, 88th Cong., 1st Sess. 10, 21 (1963).

The House modified this section to include “privately owned land”

in the first paragraph regarding “adequate access,” rather than in the

second paragraph regarding “ingress and egress.” This modification is

not explained in the House report. See H.R. Rep. No. 1538, 88th Cong.,

2d Sess. 13 (1963). The change was discussed in both the Senate and

House hearings, however. The sentiment expressed was that private

owners should have the same rights as the States. National Wilderness

Preservation Act: Hearings on H.R. 9070, H.R. 9162, S. 4 and Related

Bills, Before the Subcomm. on Public Lands o f the House Comm, on

Interior and Insular Affairs, 88th Cong., 2d Sess. 1369-72 (1963). Both

public witnesses and congressmen stated that ingress and egress was

uncertain under both 16 U.S.C. §478 and the wilderness acts, and that

the same provision for exchange should be made for private owners as

was made for States. Id. There is no indication that this addition of

privately owned lands modified the purpose of the section as identified

by Senator Bennett.

In sum, if uses are well-established prior to wilderness designation,

they may be permitted to continue.47 In addition, all existing private

47 Section 4(d)(1) o f the A ct, 16 U.S.C. § 1133(d)(1), provides that the “ use o f aircraft o r m oto r

boats, w here these uses have already becom e established, may be perm itted to continue subject to such

restrictions as the S ecretary o f A griculture deem s desirable.” T h e com m ittee reports reveal an intent

that o ther w ell-established uses also be perm itted to continue. See. e.g.. S. Rep. No. 109, 88th C ong.,

1st Sess. 2, 10 (1963). See also 109 C ong. Rec. 5926 (1963) (S enator C hurch, a sp onsor o f the bill,

expressed the view that ow ners o f ranches be allow ed to co n tin u e “the cu stom ary usage o f th eir

property for ingress and egress accordin g to the custo m ary w ays” ).

53

rights of access are preserved. Even if the landowner has no prior

existing right to access not consistent with wilderness uses, the Wilder

ness Act requires that “adequate access” be given or that an offer be

made to the landowner to exchange the land for federal land of ap

proximately equal value. As a result of § 5(a), therefore, the inholder

actually may possess more access “rights” than were possessed prior to

wilderness designation. If the landowner rejects an offer of land ex

change, he may retain title to the inholding and exercise access rights

consistent with wilderness uses, or he may consent to acquisition of his

land by the federal government.

These responses to the questions you have asked should provide

satisfactory guidance in your performance of your federal land manage

ment responsibilities.

Sincerely,

B e n ja m in R. C i v i l e t t i

54