Inholdings & Other Occupancies

The Inholdings & Other Occupancies toolbox is a ‘work in progress’ and represents information available to date on this subject. To suggest new materials for inclusion, email Lisa Ronald at lisa@wilderness.net.

Introduction

Overview

This toolbox contains resources for managing access to private or state lands within wilderness areas, and access to valid occupancies. It further contains resources for the management of valid occupancies and the access to valid occupancies that may be located in wilderness areas. These are addressed in Sections 4(c) and Section 5 of the Wilderness Act of 1964, and apply to the ownership of real property, or an interest in property including valid mining claims. This toolbox does not address access related to permitted activities when they do not include ownership or legal interest in property, such as grazing access which is addressed in the Grazing Toolbox. Though access to mining claims is addressed here, management of mining activities is addressed in the Minerals Toolbox.

Always consider acquisition of private properties in wilderness when access issues arise. Many times owners are open to being bought out so that they can invest the funds in a property that is easier to put to use. The agencies have authority to acquire lands from willing sellers, however, purchase price can only be for the appraised value. See the toolbox on acquisitions for more information on this option.

NOTE: Though the Arthur Carhart National Wilderness Training Center has made every effort to provide materials that are legally accurate, inholding access is legally complex and so it is important to contact your solicitor or general counsel if an inholding access issue arises in your wilderness. However, this toolbox will provide you with foundational knowledge so you will be aware of the initial conversations you should have with landowners, and how to fully engage in discussions with legal counsel.

Definitions

Basis in the Wilderness Act

Excerpts from the Wilderness Act by Agency
Agency that Excerpt Applies to Excerpt from Law

All

Sec. 4. (c) ...subject to existing private rights...

Bureau of Land Management

Forest Service

Sec. 5. (a) In any case where State-owned or privately owned land is completely surrounded by national forest lands within areas designated by this Act 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 Agriculture: 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.

Bureau of Land Management

Forest Service

(b) In any case where valid mining claims or other valid occupancies are wholly within a designated national forest wilderness area, the Secretary of Agriculture shall, by reasonable regulations consistent with the preservation of the area as wilderness, permit ingress and egress to such surrounded areas by means which have been or are being customarily enjoyed with respect to other such areas similarly situated. Note: Through subsequent legislation, where Secretary of Agriculture is stated, provisions also apply to the Secretary of Interior, and where National Forest is stated, provisions also apply to the Bureau of Land Management.

Law

Management Regulations, Policies, and Practices

FWS

Policy - Natural and Cultural Resources Management, Part 610 Wilderness Stewardship

Chapter 2 Wilderness Administration and Resource Stewardship, 610 FW 2

2.10 May the Service authorize access through wilderness to non-Federal land where rights to access do not exist? Where there is existing access or a right of access through nonwilderness land, we will generally not allow access through wilderness other than that available to the general public. We will give State or private landowners, and their successors in interest, effectively surrounded by or adjacent to wilderness, access to their land through wilderness where such access is appropriate and compatible with the purposes of the refuge, including the purposes of the Wilderness Act, and does not involve uses generally prohibited by the Wilderness Act. We will only approve that combination of routes and modes of travel which will, as determined by the Refuge System, cause the least lasting impact on wilderness character. We will authorize such access through a renewable special use permit for a period not to exceed 5 years. See 610 FW 5 for some of the additional provisions applicable in Alaska.

Chapter 5 Special Provisions for Alaska Wilderness, 610 FW 5

5.6 What special provisions apply to access to inholdings in Alaska wilderness areas? Section 1110(b) of ANILCA requires that we give the owners of valid inholdings adequate and feasible access, for economic or other purposes, across a refuge, including a designated wilderness area. An inholding is State-owned or privately owned land, including subsurface rights underlying public lands, valid mining claims, or other valid occupancy that is within or effectively surrounded by one or more conservation system units. We require a right-of-way permit for access to an inholding only when section 1110(b) does not provide adequate and feasible access without a right-of-way permit (43 CFR 36.10(b)). When a right-of-way permit is necessary under this provision, we process the application in accordance with regulations in 43 CFR 36.10 and 50 CFR 29.21.

5.8 What special provisions apply to authorization of temporary access to non-Federal lands?
A. Section 1111 of ANILCA requires the Service to authorize and permit temporary access across wilderness to State or private land by a landowner for the purpose of survey, geophysical, exploratory, or other temporary uses where access will not result in permanent harm to the resources of the area or lands. Regulations at 43 CFR 36.12 implementing section 1111 of ANILCA define temporary access to State or private lands as limited, short-term access, which does not require permanent facilities.

B. The landowner seeking access must complete an application for temporary access (SF 299). After evaluating the application and ensuring that no permanent harm will result to the resources of the area, the refuge may issue a special use permit with the necessary stipulations and conditions.

NPS

6.4.6 Existing Private Rights Wilderness designation does not extinguish valid existing private rights (for example, fee-simple interest, less-than fee-simple interest, valid mineral operations, rights-of-ways, grazing permits). The validity of private rights within wilderness must be determined on a case-by-case basis. Valid private rights in wilderness must be administered in keeping with the specific conditions and requirements of the valid right.

General Process Guidelines

Inholdings

When private lands are surrounded by wilderness, there may be allowances to the landowner to access them with motor vehicles which are otherwise prohibited by Section 4(c). This provision may be through a right-of-way across the surrounding lands also owned by the landowner, or it may be through a provision of law. The Wilderness Act allows for access to private lands in Section 5(a). However, this provision does not guarantee motor vehicle access. Section 5(a) allows for "adequate" access, and that may mean allowing for continued non-motorized access. Other applicable laws provide for "reasonable" access, which again may mean allowing for continued non-motorized access. Though there is case law to guide how to provide access, the difference between "adequate" and "reasonable" access is not entirely settled. Furthermore, access provisions for wilderness in Alaska have other standards, and these are not fully tested in the courts. And finally, neither "adequate" nor "reasonable" access provisions apply to the FWS or NPS. The following process steps will help guide you through the process and analysis in making a finding for access to private lands.

Process steps in responding to a request for access to an inholding

  1. Determine if owner is willing to sell. Case law suggests that this step is an important consideration in developing a full range of alternatives in NEPA. Though this may seem to be a costly alternative in both budget and staff time, it may be cost effective for both the agency and the property owner. Sale is only possible at the landowner's discretion (unless otherwise specified in law); if the landowner still pursues access, continue with the following steps.
  2. Determine if an access ROW exists. These may be present as
    • expressly granted by the federal government prior to wilderness designation
    • an encumbrance to a deed where private property has been acquired by the federal government
    • as an implied easement associated with a patent, and perfected through the Quite Title Act or Disclaimer of Interest

    These provisions apply to all agencies, but note that access to an inholding in wilderness managed by the FWS and NPS can only occur through these means. These are not common, and can be complex, and usually require guidance from your agency's attorneys. If no ROW exists stop here for the FWS and NPS, or continue for the BLM and FS.

  1. If the wilderness is in Alaska, apply the provision of ANILCA, where applicable, to provide "...such rights as may be necessary to assure adequate and feasible access for economic and other purposes to the concerned land..." ANILCA Sec. 1110(b).
  2. Determine that the property is completely surrounded by federal lands designated as wilderness. If it is not, stop, the provisions of Section 5(a) do not apply.
  3. Inform the land owner of costs
    • NEPA is required, and there is cost recovery to prepare the NEPA analysis
    • A rental fee is charged
  4. Ask the owner to submit an application
    • Owner specifies the degree of access they are seeking (route, mode of travel, frequency of use).
    • Owner specifies the degree of access they exercised at the time of designation
    • Owner specifies the use of the property
  5. Agency begins to make a finding, based on the owner's application, documentation of use in agency records (for example, as described in the Wilderness Management Plan), physical evidence present on the ground or seen in period aerial imagery, degree of development existing on the property (the level of development provides a strong indication of access activity occurring at the time of designation), other relevant documentation identified by agency or provided by owner, and any other evidence. Ultimately, the agency must make a finding as to the degree of access that occurred at the time of designation, based on all available evidence. This finding provides the basis for authorizing adequate access.
  6. Agency determines if reasonable access is also required. In all FS wilderness areas, surrounding inholdings are entitled to reasonable access in addition to adequate access per the Wilderness Act. In some BLM wilderness areas, reasonable access is also required, and so the enabling legislation must be consulted. Reasonable access is determined by identifying the access occurring to similarly situated non-federal land. The agency must identify the extent of access provided to other non-federal property, in the wilderness or in similar wilderness areas, with similar circumstances. This comparison includes identifying the access present before wilderness designation, and the degree of access development after.
  7. Identify access practices which cause the least amount of impact to wilderness character. This includes limiting use of only one route, limiting maintenance to what was in occurrence to avoid upgrading the route or identify maintenance needed to provide protection of wilderness character (e.g. water bars), identify necessary restrictions (e.g. sessional restriction when excessively muddy), and preventing unauthorized uses (e.g. general public use). A note on maintenance... maintenance is the responsibility of the owner, but the agency must be notified of planned maintenance and monitor to assure specified standards are adhered to.
  8. Prepare an EA to issue a decision and issue the landowner authorization that specifies the extent of allowable use and maintenance.

Note on responding to on-going access issues immediately after wilderness designation

How access is provided immediately after a new wilderness is designated, but before the permitting process is complete, can lead to some logistical problems and questions. On one hand, the permitting process can be lengthy, and it could unfairly impede the landowner the use of their property if the process for approving access takes considerable time. On the other hand, the agencies are required to preserve wilderness character as soon as the wilderness is designated. In one case before the Interior Board of Land Appeals, appellants claimed the BLM violated CEQ Regulations by enabling owners of inholdings interim access to their property before an authorization permit was processed. The BLM had closed the access route to the public by gating it, but gave keys to the inholding owners. The Board determined that agency action prior to a decision being issued cannot: 1) Have an adverse environmental impact; or 2) Limit the choice of reasonable alternatives (see 40 C.F.R. § 1506.1(a)). However, the Board determined that as long as the agency is allowing nothing more than continuing the status quo until the BLM can make an informed decision, it is consistent with the CEQ Regulations.

This principle could easily become the subject of abuse, and so the agency should consider the following recommendations before allowing interim access:

  1. Only allow interim access if the inholding owner has filed a properly completed application so that the NEPA process has been initiated.
  2. Only allow a degree of interim access where there is no question it is consistent with the state of access immediately prior to wilderness designation. Interim access is not a window of time for the owner to initiate a project using modes, routes, or levels of transportation to which there is any doubt of prior activity, or increasing use in an attempt to influence the agencies finding of the use that occurred at the time of wilderness designation.
  3. Limit interim access to essential needs. Do not allow motorized access for general reconnoitering. Do allow motorized access for facility repair. Each situation will be unique and will require judgement on its own merits.
  4. Interim access expires once an agency decision has been issued.

Rights of Way

Section 4(c) identifies uses that are prohibited in wilderness, but also makes and exception for uses associated with a valid private right. Often referred to as valid existing rights, or rights-of-way, they can come in a number of forms, and have a number of different legal origins, but we will collectively address them as valid occupancies. The owner of an inholding holds a form of fee ownership, that is absolute ownership which enables them to exclude others from the property. But a person may own less that fee ownership, that is less than the greatest aggregate of rights to the property, and those rights also remain in effect after wilderness designation. For example, a person may hold a right to a well and pipeline on the land, but do not hold any other rights to the property. These rights can be exercised to their fullest extent, but only those uses and activities specified in the right are allowed.

Frequently, if a valid occupancy for a facility exists in wilderness, there will be a right to access the facility as well. The specified access cannot be changed. For example, if a radio tower right-of-way also included a helicopter landing provision, that cannot be changed to cross country vehicle use. Sometimes, however, a valid occupancy does not also include a specified right to access. In such a case, section 5(b) of the Wilderness Act provides for access. An examination of similar facilities operated under a right-of-way in wilderness must be made to identify the access customary to the situation. That is the access that will be provided for the occupancy at issue. Mining claims are likely to be the most common form of valid occupancy. In the case of a mining claim, the degree of access may be different based on the stage of the mining operation. The access provided must be essential or reasonably incident to the stage of mining occurring. For example, sample taking for gathering evidence of a discovery can be accomplished by non-motorized means, whereas removal of ore would require motorized means.

Process steps in responding to a request for access to a valid occupancy

  1. Determine if the occupancy can be moved. There are examples of facilities being relocated outside of wilderness. However, the facility operator may be willing to move, but because they are not required to move, may only be willing to do so if the move is funded. Funding may be available through wilderness support groups, through line item in your budget, or a combination of funding sources.
  2. Examine the legal documents to assure the facility is valid, and if any access has been granted.
  3. Ask the owner to submit an application
    • Owner specifies the degree of access they are seeking (route, mode of travel, frequency of use).
    • Owner specifies the degree of access they exercised at the time of designation
  4. Determine the access occurring to similarly situated facilities in wilderness with similar circumstances. This comparison includes identifying the access present before wilderness designation, and the degree of access development after.
  5. In the case of a mining claim, identify the access which is essential or reasonably incident to the stage of mining occurring.
  6. Identify access practices which cause the least amount of impact to wilderness character. This includes route selection to avoid sensitive areas, identify necessary restrictions (e.g. sessional restrictions for listed species), and preventing unauthorized uses (e.g. general public use).
  7. Prepare an EA to issue a decision and issue the landowner authorization that specifies the extent of allowable use and maintenance.

Note on RS 2477 rights-of-ways

RS 2477 is a type of right-of-way for public roads held by county or state governments. There have been numerous RS2477 ROWs asserted, but many with scant evidence to substantiate them. Once adjudicated in court under the Quite Title Act, the ROW is managed as would be any other ROW; that is, according the rights applicable and indicated by the court. An asserted RS 2477 right-of-way is not a valid right, and does not convey any interest in property. Though the federal agency does not make a determination of the validity of a RS 2477 right-of-way, it is helpful to understand the basic conditions that lead to a finding of validity. They are:

  • Ten years of continuous public use of the road as a public thoroughfare
  • Frequency of use need not be great, but must be sufficient to call the road a 'public thoroughfare.
  • Intermittent or occasional use by hunters, fishermen, and shepherds, farmers, and miners is insufficient
  • Regular use by a single cattleman is insufficient

See San Juan County v US for a case study on RS 2477.

Adequate v Reasonable access

Though the Wilderness Act only addresses "adequate" access, in some cases subsequent legislation further requires the agencies to provide access for "reasonable" use and enjoyment. This is true for all Forest Service Wilderness areas because of ANILCA. It also applies to some BLM wilderness areas through their specific enabling legislation. Though the difference between "adequate" and "reasonable" is not fully resolved, there is some guidance to consider. Citing the Random House College Dictionary, the Interior Board of Land Appeals noted that "adequate" means "barely sufficient or suitable," while "reasonable" means "not exceeding the limit prescribed by reason" (see IBLA 2004-291 (2007)). Therefore the Board concluded that some difference in determining allowable access exists based on the terms used and that BLM is not bound by general rules implementing "adequate access" provisions. The Forest Service determines what constitutes "reasonable" use and enjoyment based on contemporaneous uses made of similarly situated lands. Thus, in addition to identifying the extent of access occurring to an inholding at the time of designation, the Forest Service must take the additional step to identify the extent of access occurring with other similar inholdings. These two findings combined are the Forest Service basis for what is adequate for reasonable use and enjoyment, and what extent of access the inholding owner is entitled to.

Case Studies in Preserving Wilderness Character