[Title 36 CFR D]
[Code of Federal Regulations (annual edition) - July 1, 2002 Edition]
[Title 36 - PARKS, FORESTS, AND PUBLIC PROPERTY]
[Chapter II - FOREST SERVICE, DEPARTMENT OF AGRICULTURE]
[Part 251 - LAND USES]
[Subpart D - Access to Non-Federal Lands]
[From the U.S. Government Printing Office]


36PARKS, FORESTS, AND PUBLIC PROPERTY22002-07-012002-07-01falseDSubpart DPARKS, FORESTS, AND PUBLIC PROPERTYFOREST SERVICE, DEPARTMENT OF AGRICULTURELAND USES
                 Subpart D--Access to Non-Federal Lands

    Source: 56 FR 27417, June 14, 1991, unless otherwise noted.



Sec. 251.110  Scope and application.

    (a) The regulations in this subpart set forth the procedures by 
which landowners may apply for access across National Forest System 
lands and the terms and conditions that govern any special use or other 
authorization that is issued by the Forest Service to permit such 
access.
    (b) These regulations apply to access across all National Forest 
System lands, including Congressionally designated areas, and supplement 
the regulations in subpart B of this part, and in parts 212 and 293 of 
this chapter. The regulations of this subpart do not affect rights-of-
way established under authority of R.S. 2477 (43 U.S.C. 932); rights-of-
way transferred to States under 23 U.S.C. 317; access rights outstanding 
in third parties at the time the United States acquired the land; or the 
rights reserved in conveyances to the United States and in other 
easements granted by an authorized officer of the Forest Service. Except 
for the aforementioned rights-of-way, currently valid special-use 
authorizations will become subject to the rules of this subpart upon 
expiration, termination, reversion, modification, or reauthorization.
    (c) Subject to the terms and conditions contained in this part and 
in parts 212 and 293 of this chapter, as appropriate, landowners shall 
be authorized such access as the authorized officer deems to be adequate 
to secure them the reasonable use and enjoyment of their land.
    (d) ln those cases where a landowner's ingress or egress across 
National Forest System lands would require surface disturbance or would 
require the use of Government-owned roads, trails, or transportation 
facilities not authorized for general public use, the landowner must 
apply for and receive a special-use or road-use authorization 
documenting the occupancy and use authorized on National Forest System 
lands or facilities and identifying the landowner's rights, privileges, 
responsibilities, and obligations.
    (e) Where ingress and egress will require the use of existing 
Government-owned roads, trails, or other transportation facilities which 
are open and available for general public use, use by the landowner 
shall be in accordance with the provisions of part 212 of this chapter.
    (f) The rules of this subpart do not apply to access within 
conservation

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system units in Alaska which are subject to title XI of the Alaska 
National Interest Lands Conservation Act (16 U.S.C. 3101), except for 
access to inholdings authorized by section 1110(b) of that Act.
    (g) Where there is existing access or a right of access to a 
property over non-National Forest land or over public roads that is 
adequate or that can be made adequate, there is no obligation to grant 
additional access through National Forest System lands.



Sec. 251.111  Definitions.

    In addition to the definitions in subpart B of this part, the 
following terms apply to this subpart:
    Access means the ability of landowners to have ingress and egress to 
their lands. It does not include rights-of-way for power lines or other 
utilities.
    Adequate access means a route and method of access to non-Federal 
land that provides for reasonable use and enjoyment of the non-Federal 
land consistent with similarly situated non-Federal land and that 
minimizes damage or disturbance to National Forest System lands and 
resources.
    Congressionally designated area means lands which are within the 
boundaries of a component of the National Wilderness Preservation 
System, National Wild and Scenic River System, National Trails System, 
and also National Monuments, Recreation, and Scenic Areas within the 
National Forest System, and similar areas designated by Federal statute.
    Landowner(s) means the owner(s) of non-Federal land or interests in 
land within the boundaries of the National Forest System.



Sec. 251.112  Application requirements.

    (a) A landowner shall apply for access across National Forest System 
lands in accordance with the application requirements of Sec. 251.54 of 
this part. Such application shall specifically include a statement of 
the intended mode of access to, and uses of, the non-Federal land for 
which the special-use authorization is requested.
    (b) The application shall disclose the historic access to the 
landowner's property and any rights of access which may exist over non-
federally owned land and shall provide reasons why these means of access 
do not provide adequate access to the landowners property.
    (c) The information required to apply for access across National 
Forest lands under this subpart is approved for use under subpart B of 
this part and assigned OMB control number 0596-0082.



Sec. 251.113  Instrument of authorization.

    To grant authority to construct and/or use facilities and structures 
on National Forest System lands for access to non-Federal lands, the 
authorized officer shall issue a special-use authorization in 
conformance with the provisions of subpart B of this part or a road-use 
permit. In cases where Road Rights-of-way Construction And Use 
Agreements are in effect, the authorized officer may grant an easement 
in accordance with the provisions of part 212 of this chapter.



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

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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 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.