prescriptive ease 01 09

Prescriptive Easement Lawfor State & County Forest Roads

M.S. 89.715, Sec 1- Authorization: Alternative Recording for State Forest RoadsSubd. 1 - The commissioner may adopt a forest road map under this section to record the department's state forest road prescriptive easements.

MS 282.041, Subd. 2- Authorizes Counties to follow same procedure for adopting county forest roads.

Presentation Purpose

• Familiarize you with the new law• Discuss implications of the new law and

how it affects DNR, County and other landowners

• Discuss appropriate roles and responsibilities for the DNR and Counties.

• Propose an implementation plan for recording forest roads under the new law

Basic Requirements of the Law

Subd. 2 - Sets standards for the recording of a state forest map.

• Show State forest roads at time of recording

• Be made at a scale compliant with standards of the county recorder where the state forest roads are located

• Include a north arrow, section numbers, county name and state

• Include a blank for public hearing information

• Include a blank for Commissioners signature & date

• Include a blank for legal descriptions of all parcels.

Subd. 3 - Sets Procedures to Adopt a Map• Commissioner may develop map by county or smaller unit

at their discretion

• Set time and place for public hearing

• Hearing notice must state components of roads to be recorded (ie: treadway, ditches and backslopes)

• Sets terms and conditions for posting public notice and requires Commissioner to notify all affected landowners of record

• Sets standards for the development of maps

• Requires Commissioner to meet and consult with County Land Commissioner, Auditor, and Recorder

• Requires map to meet County standards for recording

Subd 4 - Establishes process for appeal by affected landowners.

(a) Appeals may be filed only by property owners who are directly affected by a proposed map designation and only for those portions of the map designation that directly affect them.

(b) A property owner may appeal the map designation to the commissioner within 60 days of the map being recorded by filing a written request for review. The commissioner shall review the request and any supporting evidence and render a decision within 45 days of receipt of the request for review.

(c) If a property owner wishes to appeal a decision of the commissioner after review under paragraph (b), the property owner must file an appeal with the district court within 60 days of the commissioner's decision.

(d) If any portion of a map appealed under paragraph (b) is modified or found to be invalid by a court of competent jurisdiction under paragraph (c), the remainder of the map shall not be affected and its recording with the county recorder shall stand.

Proposed Method of Establishing and Inventorying State Forest Roads

• State forest roads may only be created by a Commissioners designation order (M.S.89.71)

• State forest roads may be undesignated by Commissioners order (M.S.89.71)

• Maps of state forest roads will be created and recorded under M.S.89.715 and become “the official map of state forest roads”

• The DRS will be updated with the same information contained on “the official map of state forest roads” recorded in each county.

Benefits of the Law• Provides legal means for officially recording prescriptive

easements on state/county forest roads to the width of actual use.

• Does not affect easements already in place • Allows transfer of state/county forest road easement rights

to other units of government.• Establishes similar easement rights on all forest roads• Protects state/county forest roads from claims by private

landowners.

Drawbacks• Does not address easements over federal or tribal lands• May require purchasing additional easement rights from

private parties

Implementation Plan

Road Easement Specialist’s Responsibilities• Assemble and lead project teams.• Ensure WHEELS is accurate and updated in a

timely fashion• Develop and maintain project processes, web site

and map standards• Conduct required activities for public notification

and public hearing process• Secure needed funding and/or additional staff time

to complete project.• Research records and make supporting

documentation available to affected landowners

Area Staff Responsibilities• Provide historical use documentation for DNR

and/or public use of the forest road to include:

- timber sales and other resource management

documents on state, county or private lands.

- Permits issued for use of forest road

- Public use of forest road, etc. • Assistance in contacting affected landowners• Coordination and communication with Local

officials• Assistance at public hearings

Project Counties

Current Project Status

Map Examples for Recording and Public Meetings

County-wide Public Hearing Map

Road Specific Public Hearing Ownership Map

Road Specific Public Hearing 2000’s FSA Photo

Road Specific Public Hearing 1990’s DOQ Photo

Recording Map

Documenting Use of Forest Roads• Old Air Photos 30’s through 2000+

• Timber Sale Records

• Forest Development Records

• Forest Road Records – maintenance, grading, graveling, signage.

• Older Highway, Township Plat or other Maps showing route.

• State, County & Township records referencing use of route.

• Forest road or trail leases & easements.

• Testimonials documenting use from:– County & Township officials

– Foresters & Wildlife Managers.

– Trappers & Bait Dealers

– Private Landowners

– Industrial Landowners

– Recreationists

Examples of Use Documents