RIGHTS-OF-WAY ACROSS NATIONAL FORESTS

The act of June 4, 1897, c. 2, 30 Stat. 36 (16 U.S.C. 478), uses the words "actual settlers residing within the boundaries of national forests" in their well-established technical meaning; they are not a substitute for natural persons or corporations owning property within the boundaries of national forests.

When granting a permit to an actual settler to construct a wagon road across a national forest, or when granting a permit to a person who is not an actual settler to use existing roads or to construct new wagon roads across national forests, the Secretary of Agriculture has the discretionary authority to require that the applicant grant a similar reciprocal right to the United States to cross his property in order to reach national forest lands.

The property rights of the United States are not lost by estoppel or the failure of the United States or its officials to claim them.

THE SECRETARY OF AGRICULTURE.

FEBRUARY 1, 1962.

MY DEAR MR. SECRETARY: This is in reply to your letter of August 2, 1961, requesting my opinion on several questions arising in the administration of the national forests under the act of June 4, 1897, 30 Stat. 36, 16 U.S.C. 478.1

1. That act, as codified in title 16 of the United States Code, provides in pertinent part:

"SEC. 478. Nothing in sections 473-482 and 551 of this title shall be construed as prohibiting the egress or ingress of actual settlers residing within the boundaries of national forests, or from crossing the same to and from their property or homes; and such wagon roads and other improvements may be constructed thereon as may be necessary to reach their homes and to utilize their property under such rules and regulations as may be prescribed by the Secretary of Agriculture. Nor shall anything herein prohibit any person from entering upon such national forests for all proper and lawful purposes, including that of prospecting, locating, and developing the mineral resources thereof. Such persons must comply with the rules and regulations covering such national forests."

The scope of the act of June 4, 1897, 30 Stat. 36, is limited to national forests reserved from the public domain. This opinion, therefore, does not apply to national forests reserved from property acquired by the United States under the Weeks Act of March 1, 1911, 36 Stat. 961.

The substance of the inquiry is whether you have the authority to grant a permit to use an existing road in, or to build a new road across, a national forest on the condition that the applicant for that permit confer on the United States a reciprocal benefit with respect to his own property; i.e., that he permit the United States to use roads existing on it or to build new roads across it in order to reach national forest lands.

Your General Counsel has explained the factual circumstances underlying your inquiry. In many parts of the country, especially in the checkerboard lands of the Northwest,2 much privately owned timber may be reached only by crossing national forests, and, conversely, private property frequently must be crossed in order to obtain access to national forests. During the past years, private landownerseven those who have been permitted to build roads across national forest lands in order to get to their own timberhave become reluctant to permit the Forest Service to build new roads or use existing ones over their own lands in order to reach national forest enclaves. As a result, the Forest Service has had to delay a considerable portion of its development program. I understand that the disinclination of landowners to permit the Forest Service to cross their property may be explained in part by the intensification of land use and the rapid growth of land values, and to some extent by the circumstance that your department can grant to the private owners only temporary revocable permits to cross national forests, while the Forest Service for practical and

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2 Cf. Camfield v. United States, 167 U.S. 518 (1897).

See also Federal Timber Sales Policies, Joint Hearings before a Special Subcommittee on the Legislative Oversight Function of the Committee on Interior and Insular Affairs, United States Senate, and the Subcommittee on Public Works and Resources of the Government Operations Committee, House of Representatives, 84th Cong., 1st and 2d sessions, vol. 2, p. 2051.

The act of February 1, 1905, 33 Stat. 628, 16 U.S.C. 472, transferring to the Department of Agriculture a large part of the jurisdiction over national forests then exercised by the Department of the Interior, has been implemented by an agreement between the two Departments pursuant to which the Department of Agriculture may grant temporary permits to occupy and use national forests which "if granted, will in nowise affect the fee or cloud the title of the United States should the reserve be discontinued.," while the Department of the Interior "retains jurisdiction over all applications affecting lands within a forest reserve the granting of which amounts to an easement running with the land * * *.” 33 L.D. 609, 610 (1905).

fiscal reasons usually must insist on obtaining a permanent right-of-way over private property.5

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This problem apparently came to a head in 1950. In regulations issued in that year with respect to certain timber lands under its jurisdiction, the Department of the Interior took the position that it was the responsibility of that department to obtain access to the timberlands administered by it (43 C.F.R. 115.155 (b) and (c)). On the basis of this finding, 43 C.F.R. 115.155 (d) provides that where the Department of the Interior grants a right-of-way to a private operator, the latter may be required in appropriate circumstances to grant to the United States or to its licensees rightsof-way over property controlled by him directly or indirectly, or the right to use existing roads or road systems built by the private operator."

About the same time, the Chief of the Forest Service sought an opinion of the Solicitor of the Department of Agriculture as to whether the Department of Agriculture could issue similar regulations. A memorandum, prepared in the Solicitor's Office, but not signed by the Solicitor, came to the conclusion that such requirements could not be imposed legally on persons owning property within the boundaries of national forests. The memorandum took the position, first, that the statutory right of "egress and ingress," provided for in 16 U.S.C. 478, was not limited to "actual settlers residing within the boundaries of national forests" in the technical sense, i.e., to a person who, under the Homestead and related acts, has entered upon the public lands as a cultivator of the soil and who lives in a habitable dwelling he has placed upon the land. It reasoned, on the basis of interpretation of the legislative history of the act of June 4, 1897, supra, that Congress intended to confer a statutory right of egress and ingress on every one who owned property within the boundaries of national forests. Second, the mem

Federal Timber Sales Policies (supra, n. 3), p. 2051.

• Circular 1751 of April 5, 1950, 15 F.R. 1971, 43 C.F.R. Part 115.154 through 115.179.

743 C.F.R. 244.52 extends these regulations to applications for permanent rights-of-way across national forests reserved to the Department of the Interior pursuant to the act of February 1, 1905, 33 Stat. 628, 16 U.S.C. 472, and to the agreement between the Departments of Agriculture and of the Interior implementing that statute. Cf. supra, n. 4.

8 For a more detailed discussion of the term "actual settler" see infra, p. 8.

orandum concluded that the authority of the Secretary of Agriculture to issue rules and regulations concerning the construction of wagon roads across national forests by persons having a right of egress and ingress was limited to the location of the road, and to the prevention of injury to the forest and of interference with its administration; hence, that he could not require a person who had a right of egress and ingress to give to the United States a reciprocal right to cross his own land. With respect to persons not having a right of egress and ingress the memorandum indicated that it might be permissible to impose such conditions. I understand that, while the then Solicitor of your department did not sign this memorandum, your department, nonetheless, adopted the views expressed in it.

In June 1953, your predecessor in office amended the regulations pertaining to permits for the construction and use of roads and trails over national forests so as to eliminate the then existing requirement of a permit "where there is a statutory right of ingress and egress." 36 C.F.R. 251.5(d) provides that:

"(d) The right to construct or use roads on national forest land for purposes of ingress and egress to and from privately owned property within the exterior boundaries of a national forest reserved from the public domain will be recognized when (1) the applicant is the owner of such property, (2) a roadway across such national forest land is necessary to enable the applicant to reach or utilize his property therein, and (3) the construction and use of the roadway is in accordance with the rules and regulations governing the occupancy, use and preservation of the national forests. * * *99. - (Italics added.)

Under the 1953 regulations, your department accordingly administers 16 U.S.C. 478 as if the words "actual settlers residing within the boundaries of national forests" read "any person or corporation owning property within the boundaries of national forests," and construes the right of ingress and egress as including the right to construct wagon roads. The effect of this interpretation is that a lumber corporation may construct or use roads across national forests without having to pay for this privilege, while the United States has to pay just compensation to the same corporation when it

seeks to cross that company's property in order to obtain access to its own forest lands.

This interpretation of 16 U.S.C. 478 by your department has not remained unchallenged. When it was brought to the attention of Congress during the Joint Hearings on Federal Timber Sales Policies, conducted in 1955 and 1956 by subcommittees of the Senate Committee on Interior and Insular Affairs and of the House Committee on Government Operations," the subcommittee chairmen asked the Legislative Reference Service of the Library of Congress for its interpretation of that section. The latter concluded that the legislative history on which your department relies was far from conclusive and that it was insufficient to justify a departure from the clear and technical statutory language.10 The House Committee on Government Operations apparently agreed with the Legislative Reference Service since it recommended that your department should adopt the practice of the Department of the Interior, and require in appropriate cases that applicants for the construction of wagon roads across national forest lands grant reciprocal rights to the United States (cf. supra, p. 3). Similarly, this department has taken the position in the Minnesota Wilderness Area cases 12 that the words "actual settlers residing within the boundaries of national forests" were used in a narrow technical manner in 16 U.S.C. 478, and that they do not cover every natural person or corporation owning property within the boundaries of national forests.

I understand that you now want to reexamine the position taken by your department. In this connection, you have asked me the following two specific questions:

"1. Did the act of June 4, 1897 (16 U.S.C. 478), contemplate that 'actual settlers residing within the boundaries of the national forests' shall include any firms, corporations or persons other than a person 'who goes upon the public land

• Federal Timber Sales Policies (supra, n. 3), vol. 2, pp. 1454-1455. 10 Federal Timber Sales Policies, Report submitted to the Senate Committee on Interior and Insular Affairs by its Subcommittee on the Legislative Oversight Function, Committee Print, 84th Cong., 2d sess., Part II, pp. 187–231. 1 H. Rept. 2960, 84th Cong., 2d sess., pp. 11-12.

12 Cf. the briefs and memoranda filed by the United States in Perko v. United States, 204 F. 2d 446 (C.A. 8, 1953), certiorari denied, 346 U.S. 882; Bydlon v. United States, 175 F. Supp. 891 (C.Cl., 1959); and Mackie v. United States (D.C. Minn., Fifth Division, No. 5-60-45 Civil).