• Tara Christian & Morgan Hendley

Analysis Of Right Of Access To Private Inholdings On Federal Lands

Updated: May 8, 2021

This article was written by Tara Christian and Morgan Hendley on February 12, 2017 and revised May 1, 2021.


Nearly half of the land in the State of California, over 100 million acres, is owned and managed by the federal government. Congressional Research Service, R42346. 7-5700. (March 3, 2017). Within these vast federal holdings are many privately owned lands that are now completely or partially surrounded by federal lands, called inholdings. Landowners of such private inholdings on federal land have asserted a legal right of access to their property through the surrounding federal property under the Organic Act of 1897, Alaska National Interest Lands Conservation Act (ANILCA), and through common law prescriptive easements.


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Private Inholdings & The National Forest System


The Organic Act of 1867 and ANILCA require the Secretary of Agriculture to provide landowners access to their private inholdings within the boundaries of the National Forest System to secure to the owner reasonable use and enjoyment. ANILCA § 3210(a). While private landowners have a right of access, the Forest Service System or governing federal agency can determine the extent and conditions of access. The Forest Service can require landowners seeking access to their inholdings to apply for a special use permit. 36 C.F.R. Part 251, Subpart D) § 15:12.National forests, 2 Pub. Nat. Resources L. § 15:12 (2nd ed).


Adams and Tellstrom, summarized below, demonstrate the court’s efforts to balance the inholder’s right to access their private inholdings with the Forest Service’s ability to determine the extent and conditions attached to that right. Courts have considered the inherent differences between the needs of owners of inholdings and the general public, in relation to appropriate use of roads in federal lands. Inholdings are often residences or ranches, which naturally require year round and consistent access, whereas the general public requires only recreational access for hunting, camping and similar activities. Courts have found that special use permits and even fees to offset the cost of maintenance are within reasonable requirements. Fitzgerald v. U. S. 932 F. Supp. 1195, 1197 (D. Az. 1996). See also U.S. v. Srnsky, 271 F. 3d 595 (4th Cir. 2001) holding that the Forest Service right to regulate access extended even to prior private easements that had become part of federal lands. The Forest Service is treated deferentially by a reviewing court, even to the extent of damage to public lands that it is willing to allow as part of an inholding right of access. Bunyard v. U.S.D.A. 301 F. Supp. 2d 1052, 1053 (2004). See also, Selkirk Conservation Alliance v. Forsgren. 336 F.3d 944 (9th Cir. 2003) holding that the Forest Service was not arbitrary or capricious in allowing inholding road access and road maintenance, even though it had some impact on an endangered bear species.


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Tellstrom Decision Impact On Environmental Law


While Tellstrom is a relatively new decision, we are starting to see its developing impact on environmental law. Tellstrom was recently cited in United States of Am. v. Beasley, 184 F. Supp. 3d 950, 955–56 (D. Or. 2016). Defendants in Beasley used a road that was managed by the United States Forest Service to conduct commercial activity. Defendants did not have a special use permit that authorized their commercial activity over the federally managed land. Defendants argued that their son could continue to deliver ATVs across federal lands without a special use permit because he was not employed by the business. The court in Beasley disagreed with Defendants and cited Tellstrom for the principle that a person can be held liable for causing another to perform activity that would be unlawful under 36 C.F.R. § 261.10(c). The Beasley court held that since the son performed activities on behalf of the business, he was an agent of the business owners and therefore a special use permit was required for commercial activities across the federally managed lands.


The Public Natural Resources Law, Second Edition also cites Tellstrom for the proposition that ANILCA and FLPMA preempt common law easements. § 15:12.National forests, 2 Pub. Nat. Resources L. § 15:12 (2nd ed.). Additionally, Tellstrom is cited to state that there are no prescriptive easements across national forest land. § 15:12.National forests, 2 Pub. Nat. Resources L. § 15:12 (2nd ed.).


In sum, individual landowners generally have a right of access to private inholdings on National Forest Service land, though with reasonable restrictions, as determined by the controlling federal agency. Through Adams and Tellstrom, we see that the Forest Service has the ability to determine the extent of and conditions attached to an inholder's right of access. Adams suggests that easements for both access to the property and transportation of water are subject to Forest Service Regulation. Tellstrom demonstrates that landowners are also liable for causing other individuals to perform activities that violate reasonable Forest Service regulations.


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The Bounds Of Reasonable Use And Enjoyment


The Forest Service manages National Forest System lands under several statutes, including the Organic Act of 1897 (16 U.S.C. 473-478), the Federal Land Policy and Management Act (FLPMA) of 1976 (43 U.S.C 1701 et seq), and the Alaska National Interest Lands Conservation Act (ANILCA) (16 U.S.C. 3210 (a)). Taken together, these controlling statutes are clear that the federal government must allow access to privately held land within the boundaries of and surrounded by federally owned land. The nature and scope of such access is found in the common law, rather than statutory law. The Forest Service assumed a generally permissive stance on the matter of providing such access, as consistent with its mandate to balance multiple uses of Forest Service lands (See the Multiple Use Sustained Yield Act, 16 U.S.C.A 528- 531, requiring the Secretary of Agriculture to assure that management plans developed for units of the National Forest System provide for multiple use and sustained yield of products and services obtained from the National Forests). As Adams makes clear, however, residential uses of National Forest Service land, in the form of roads providing year-round, reliable access to residential or commercial inholdings, are fundamentally distinct from the seasonal access required by recreational users, or the intermittent access needed to harvest timber. Adams at 1257.


The Ninth Circuit clarified that the government may not permanently enjoin an inholding landowner from the use or occupancy of National Forest lands, even when the landowner has knowingly damaged public land in the form of unauthorized roadwork. Id. Public policy cannot countenance the intentional land-locking of private property, particularly when a public road is available that could provide the requisite access, subject to additional maintenance burdens. See, Cross v. Altaffer, 2012 WL 7808337 at recognizing the federal government’s agreement with a time-honored public policy against landlocking property and rendering it useless due to lack of access. See also, Hulse v. First Am. Title Co., 33 P.3d 122, 135 (WY Supreme. 2001), finding that Wyoming state law adhered to a well- recognized public policy against landlocking property.


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Inholding property owners have easement rights to access their land over public roads, as governed by ANILCA, but preexisting common law grants of easement are preempted by ANILCA and FLMPA. Adams at 1258. Preemption by statute allows the federal government via the Forest Service or another agency, to regulate the access, but not eliminate it entirely. Montana Wilderness Ass’n v. United States Forest Service, 496 F.Supp.880 (D. Mont. 1980) and Utah v. Andrus, 846 F. Supp. 995 (D. Utah 1979).


The Forest Service may be required to authorize the construction of new road, or the reconstruction and repair of old road in situations where there are no alternative access routes, or those in existence are impassable. (Selkirk Conservation Alliance v. Forsgren, 336 F.Ed 944, 949 (9th Cir. 2003). The predecessor-in-interest of the subject property surrounded by the Colville National Forest in Selkirk was granted an easement across federal land in response to the owner’s request for access under ANILCA. Selkirk at 948. The question then turned to the matter of costs, to determine whom should bear the cost of road construction where there was not an existing road. Draft Environmental Impact Statement, Stimson ANILCA Access Easement, Pend Oreille County, WA. (June. 1999). The private timberlands owned by the Stimson Lumber Company would require a different kind of access than the recreational public, but under the Forest Service’s multiple use mandate in FLPMA, the interests should be balanced. Draft EIS, S-4. Ultimately, it was determined that a cost-sharing agreement could be reached, since the needs of the timber company overlapped with at least some of the access needs of the Forest Service. Supra, S-4. The Forest Service considered and rejected the notion that any feasible access was sufficient to satisfy the inholding needs, including use of helicopters. Supra, S-5. Aerial access was dropped from consideration by the Forest Service because it was “not the means of access generally used by other landowners in the area to access property for a similar proposed use and the landowner did not plan to use a helicopter.” Supra, S-5.


The reasonable access requirement appears to extend to any properties surrounded by federal lands, even when those properties are owned by a State, rather than a private party. While not a settled matter, a recent Idaho district court posited that a State could be an inholder for the purposes of ANILCA, but did not directly rule on the question. Idaho Rivers United v. Hudson, 173 F. Supp.3d 1027, 1033 (D. Idaho. 2016). This view is consistent with the intent of ANILCA to require the federal government to allow access to in holdings, rather than burden the private property owner with the onerous task of proving her right to access her property.


**What if the surrounding land was formerly owned by the federal government but has since been conveyed to separate private ownership, does an easement exist over the other private land? As suggested in Montana Wilderness Ass’n, Nine Quarter Circle Ranch v. U.S. Forest Service, 655 F.2d 951 (9th Cir. 1981), the existence of an historic route of access across formerly public lands could give rise to an implied dedication by consent of the sovereign. This remains an unsettled question of law.


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Summary Of Adams


Adams v. United States, 3 F.3d 1254 (9th Cir. 1993). Private landowner has right of access over federal lands, subject to reasonable Forest Service rules and regulations.


Plaintiffs Lester and Jean Adams own two non-contiguous tracts of land in Nevada surrounded by the Toiyabe National Forest, used as a ranch. They brought this action against the Forest Service for a recognized easement in order to maintain the road to their land, and an easement to transport water between the two parcels of land. The Forest Service sought injunctive relief and damages. The district court awarded $11,000 in damages to the Forest Service, although it found the plaintiffs did have an easement to transport water between their two parcels. Both the Adams and the U.S. Forest Service appealed.


The Clark Canyon Road (Forest Service Road 20071) leads through the National Forest from the west to the Adamses’ larger tract, then continues on National Forest Service land between the two parcels to the western edge of the Adamses’ separate, smaller tract. The Adamses sought an easement under the Alaska National Interest Lands Conservation Act (ANILCA) 16 U.S.C. § § 3101 et seq., and under the common law doctrine of easement by necessity. From the government’s perspective, the Adamses do not need an easement because they already have access to their land over the Forest Service road. The government claimed that the Forest Service road is analogous to any public road in another county, town, or city.


It is clear that the Forest Service road is not like any other public road. There are instances when the road has not been maintained; snow removal may not be regularly provided, and the Forest Service does not have the same obligations to the public as a county, town, or city.


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The Alaska National Interest Lands Conservation Act § 3210(a) provides:

Notwithstanding any other provision of law and subject to such terms and conditions as the Secretary of Agriculture may prescribe, the Secretary shall provide such access to non-federally owned land within the boundaries of the National Forest System as the Secretary deems adequate to secure the owner the reasonable use and enjoyment thereof: provided, that such owner comply with the rules and regulations applicable to ingress and egress to or from the National Forest System.


Despite its name, the provisions of ANILCA apply outside of Alaska. Congress intended that “such owners had the right of access to their lands subject to reasonable regulation by… the Secretary of Agriculture in the case of national forest…” While mandating reasonable access, the statute directs the owners of private land to “comply with the rules and regulations applicable to ingress and egress to and from the national Forest System.” ANILCA provides the Adamses easement. It commands the Secretary to provide access to secure the owner’s reasonable use and enjoyment… [which] clearly rests on their ability to freely access their property. The Federal Land Policy and Management Act authorizes the Secretary to “grant, issue or renew rights of way over [National Forest] lands.”


The Appellate court vacated the injunction and remanded the case to the district court to issue a modified injunction or an order clearly delineating the rights and responsibilities of both parties. The court held the Adamses had a non-exclusive easement over the Clark Canyon Road, the Forest Service must provide reasonable access to the Adamses property via the Clark Canyon Road at all times. Reasonable access for the general public to hunt, fish, or camp may be unreasonable when applied to the Adamses, who need year-round access sufficient to operate a ranch. The Adamses may not prevent the Forest Service or any other member of the public from using the portion of Clark Canyon Road that lies on Forest Service land. The district court should also consider the reasonableness of the applicable Forest Service regulations with regard to road maintenance.


Summary Of Telstrom


U.S. v. Tellstrom, 2013 WL 1499491 (E.D. Cal. Apr. 11, 2013). Tellstrom (Defendant) is charged for construction on a road within the Shasta Trinity National Forest without a Special Use Permit even though work was performed by others.

Defendant Tellstrom is charged with three [misdemeanor] offenses that stem from the alleged activities on a roadway located partially within the Shasta Trinity National Forest, referred to herein as Coal Creek Road. Defendant is charged with violation of Title 36 C.F.R. § 261.1 for building, maintaining or constructing a road or trail on national forest system lands without a special use permit, violation of Title 36 C.F.R. § 261.9 for damaging property of the United States and violation of Title 36 C.F.R. § 261.6 for cutting or otherwise damaging any timber, tree, or other forest product except as authorized by permit.


Tellstrom is the owner of real property near Shasta Lake, in the Lakeview subdivision. The Coal Creek Road most likely served as an access road at one time from Highway 99 and Interstate 5 to the Lakeview subdivision. The Coal Creek Road does not serve as the only access to the defendant’s property from I-5. He has deeded access to the south of his property along Skyline Drive, which intersects…to I-5. Defendant claims a “pre-existing right” to use the Coal Creek Road which he asserts carries with it the right to improve and maintain the road without Forest Service authorization.


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In 2008, Tellstrom met with Shasta-Trinity National Forest Ranger Cottini to [request utilization of] the Coal Creek Road as a secondary access to his property. A portion of the road traverses Forest Service lands [and] was part of the public domain never subject to private ownership. Tellstrom submitted documents to utilize the road and was denied. In 2011, Shasta National Forest Officer Smith investigated a trespass. Smith Discovered a bulldozer on a trailer and freshly graded road. Smith noticed trees and shrubbery had been bulldozed and estimated two miles of the road had been bladed and disturbed. The most notable area of disturbance was in an area which lies completely within the Shasta National Forest.


The Organic Act of 1897 establishes the Forest System. [The] Secretary [has authority] to make “rules and regulations to regulate [forest land] occupancy and use, and to preserve the forests from destruction, [to] protect the national forests, and help to carry out the purposes for which the national forests were created. The regulations were designed to minimize adverse environmental impacts on the surface resources of the national forests.


In 1980, Congress enacted ANILCA. ANILCA mandates that the Secretary of Agriculture “provide access to non-federally owned land within the boundaries of the national forest system to secure the owner the reasonable enjoyment of private land. However, ANILCA explicitly conditions access on the applicant’s compliance with the “rules and regulations applicable to the national forest system.”


Tellstrom is charged with “cutting or damaging timber, tree, or other forest product…[and damaging United States property]. [Smith’s testimony of seeing cut and pushed over green trees and vegetation] coupled with the evidence of destruction support [the] finding Tellstrom did cut or damage trees, shrubbery [and vegetation from grading activity].


Tellstrom is charged with maintaining or constructing a road without a Special Use Permit. [Testimony and evidence] confirms [Tellstrom’s] road construction [without a permit] within the Shasta National Forest. [Generally, all use of National Forest System land...except those provided for in the regulations governing minerals and mineral materials are ‘special uses’ and must be authorized].


[Tellstrom argues] only “written authorization” [was required]. [ANILCA] provides any access by owners to their private lands over Forest Service lands requires compliance with “rules and regulations” applicable to access across public lands.” A Special Use Permit” [is] predicated on [Tellstroms’ ability to establish] he had no other route of access. [Tellstrom did have other access].

[Further, for Tellstrom to utilize the road it needs to be considered an existing national forest system road. This road was an unauthorized road and not an existing national forest system road].


[Tellstrom was charged on all counts and informed of his right to appeal the decision].


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