[Code of Federal Regulations]

[Title 36, Volume 2]

[Revised as of July 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 36CFR251.114]



[Page 323-324]

 

              TITLE 36--PARKS, FORESTS, AND PUBLIC PROPERTY

 

          CHAPTER II--FOREST SERVICE, DEPARTMENT OF AGRICULTURE

 

PART 251_LAND USES--Table of Contents

 

                  Subpart D_Access to Non-Federal Lands

 

Sec. 251.114  Criteria, terms and conditions.



    (a) In issuing a special-use authorization for access to non-Federal 

lands, the authorized officer shall authorize only those access 

facilities or modes of access that are needed for the reasonable use and 

enjoyment of the land and that minimize the impacts on the Federal 

resources. The authorizing officer shall determine what constitutes 

reasonable use and enjoyment of the lands based on contemporaneous uses 

made of similarly situated lands in the area and any other relevant 

criteria.

    (b) Landowners must pay an appropriate fee for the authorized use of 

National Forest System lands in accordance with Sec. 251.57 of this 

part.

    (c) A landowner may be required to provide a reciprocal grant of 

access to the United States across the landowner's property where such 

reciprocal right is deemed by the authorized officer to be necessary for 

the management of adjacent Federal land. In such case, the landowner 

shall receive the fair market value of the rights-of-way granted to the 

United States. If the value of the rights-of-way obtained by the 

Government exceeds the value of the rights-of-way granted, the 

difference in value will be paid to the landowner. If the value of the 

rights-of-way across Government land exceeds the value of the rights-of-

way across the private land, an appropriate adjustment will be made in 

the fee charged for the special-use authorization as provided in Sec. 

251.57(b)(5) of this part.

    (d) For access across National Forest System lands that will have 

significant non-Forest user traffic, a landowner may be required to 

construct new roads or reconstruct existing roads to bring the roads to 

a safe and adequate standard. A landowner also may be required to 

provide for the operation and maintenance of the road. This may be done 

by arranging for such road to be made part of the local public road 

system, or formation of a local improvement district to assume the 

responsibilities for the operation and maintenance of the road as either 

a private road or as a public road, as determined to be appropriate by 

the authorizing officer.

    (e) When access is tributary to or dependent on forest development 

roads, and traffic over these roads arising from the use of landowner's 

lands exceeds their safe capacity or will cause damage to the roadway, 

the landowner(s) may be required to obtain a road-use permit and to 

perform such reconstruction as necessary to bring the road to a safe and 

adequate standard to accommodate such traffic in addition to the 

Government's traffic. In such case, the landowner(s) also shall enter 

into a cooperative maintenance arrangement with the Forest Service



[[Page 324]]



to ensure that the landowner's commensurate maintenance responsibilities 

are met or shall make arrangements to have the jurisdiction and 

maintenance responsibility for the road assumed by the appropriate 

public road authority.

    (f) In addition to ensuring that applicable terms and conditions of 

paragraphs (a) through (e) of this section are met, the authorizing 

officer, prior to issuing any access authorization, must also ensure 

that:

    (1) The landowner has demonstrated a lack of any existing rights or 

routes of access available by deed or under State or common law;

    (2) The route is so located and constructed as to minimize adverse 

impacts on soils, fish and wildlife, scenic, cultural, threatened and 

endangered species, and other values of the Federal land;

    (3) The location and method of access is as consistent as reasonably 

possible with the management of any congressionally designated area and 

is consistent with Forest Land and Resource Management Plans or the 

plans are amended to accommodate the access grant, and;

    (4) When access routes exist across the adjacent non-Federal lands 

or the best route as determined by the authorizing officer is across 

non-Federal lands, the applicant landowner has demonstrated that all 

legal recourse to obtain reasonable access across adjacent non-Federal 

lands has been exhausted or has little chance of success.

    (g) In addition to the other requirements of this section, the 

following factors shall be considered in authorizing access to non-

federally owned lands over National Forest System lands which are 

components of the National Wilderness Preservation System:

    (1) The use of means of ingress and egress which have been or are 

being customarily used with respect to similarly situated non-Federal 

land used for similar purposes;

    (2) The combination of routes and modes of travel, including 

nonmotorized modes, which will cause the least lasting impact on the 

wilderness but, at the same time, will permit the reasonable use of the 

non-federally owned land;

    (3) The examination of a voluntary acquisition of land or interests 

in land by exchange, purchase, or donation to modify or eliminate the 

need to use wilderness areas for access purposes.