Federal Land Transfer and Federal Land Transfer and Land Uses on National ForestsLand Uses on National Forests

Highway Right of Ways … A common GoalHighway Right of Ways … A common Goal

Federal Land TransferFederal Land Transfer

Federal/Federal agency action under Title 23, Federal/Federal agency action under Title 23, U.S.C. – Part 317 regulationU.S.C. – Part 317 regulation

No formal Forest Service Decision Memo or No formal Forest Service Decision Memo or additional NEPA required for transferadditional NEPA required for transfer

Process used to acquire Process used to acquire permanentpermanent ROW ROW The Forest Service does not accept the use of The Forest Service does not accept the use of

Title 23, U.S.C. to authorize Title 23, U.S.C. to authorize temporarytemporary ROWs, ROWs, construction easements or short-term land construction easements or short-term land uses.uses.

National MOUNational MOU

National Forest Service-FHWA MOU sets protocols National Forest Service-FHWA MOU sets protocols for implementation of land transfer process. Use it as for implementation of land transfer process. Use it as a reference.a reference.

MEMORANDUM OF UNDERSTANDINGMEMORANDUM OF UNDERSTANDING BETWEENBETWEEN

UNITED STATES DEPARTMENT OF AGRICULTUREUNITED STATES DEPARTMENT OF AGRICULTUREForest Service Forest Service andand

UNITED STATES DEPARTMENT OF TRANSPORTATIONUNITED STATES DEPARTMENT OF TRANSPORTATIONFederal Highway AdministrationFederal Highway Administration

Regarding the Appropriation and Transfer of Regarding the Appropriation and Transfer of National Forest System Lands for Highway PurposesNational Forest System Lands for Highway Purposes

Highway Easement Deed Trivia

Purpose: Construct, operate and maintain the Purpose: Construct, operate and maintain the transportation facility transportation facility on NFS lands.on NFS lands.

FHWA issues the easement on behalf of the FHWA issues the easement on behalf of the federal government, not the Forest Service. federal government, not the Forest Service.

Instrument is termed a “USDOT easement.” Instrument is termed a “USDOT easement.” State DOT holds easement on federal and state State DOT holds easement on federal and state highways.highways.

EASEMENT CONDITIONSEASEMENT CONDITIONS

1. Outstanding valid claims, if any, existing on the date of this grant, and the Grantee shall obtain such permission as may be necessary on account of any such claims.

2. The Grantee and the Regional Forester shall make determination as to the necessity for archeological and paleontological reconnaissance and salvage within the right-of-way, and such reconnaissance and salvage to the extent determined necessary because of construction of the highway facility, is to be undertaken by the Grantee in compliance with the acts entitled An Act for the Preservation of American Antiquities, approved June 8, 1906 (34 Stat. 225, 16 U.S.C. 432-433), the Archaeological Resources Protection Act of 1979 (93 Stat. 721, 16 U.S.C. 470aa-470ll), and State laws where applicable.

3. 5/ Unless the Grantee and Regional Forester stipulate as to a shorter time, the easement herein granted shall terminate ten (10) years from the date of the execution of this deed by the United States of America in the event construction of a highway on the right-of-way is not started during such ten-year-period.

Easement DeedEasement Deed

Deed easement. Forest Service has ten Deed easement. Forest Service has ten conditionsconditions that that are always included in the deed easement language.are always included in the deed easement language.

23 U.S.C. – Part 317 (a)23 U.S.C. – Part 317 (a)

a) If the Secretary determines that any part of the a) If the Secretary determines that any part of the lands or interests in lands owned by the United States lands or interests in lands owned by the United States is reasonably necessary for the is reasonably necessary for the right-of-wayright-of-way of any of any highway, or as a highway, or as a source of materialssource of materials for the for the construction or maintenance of any such highway construction or maintenance of any such highway adjacent to such lands or interests in lands, the adjacent to such lands or interests in lands, the Secretary shall file with the Secretary of the Secretary shall file with the Secretary of the Department supervising the administration of such Department supervising the administration of such lands or interests in lands a map showing the portion lands or interests in lands a map showing the portion of such lands or interests in lands which it is desired to of such lands or interests in lands which it is desired to appropriate.appropriate.

23 USC 317 (b)23 USC 317 (b)

b) If within a period of b) If within a period of four monthsfour months after such filing, the after such filing, the Secretary of such Department shall not have certified to Secretary of such Department shall not have certified to the Secretary that the proposed appropriation of such land the Secretary that the proposed appropriation of such land or material is contrary to the public interest or or material is contrary to the public interest or inconsistent with the purposes for which such land or inconsistent with the purposes for which such land or materials have been reserved, or shall have agreed to the materials have been reserved, or shall have agreed to the appropriation and transfer under conditions which he appropriation and transfer under conditions which he deems necessary for the adequate protection and deems necessary for the adequate protection and utilization of the reserve, then such land and materials utilization of the reserve, then such land and materials may be appropriated and transferred to the State may be appropriated and transferred to the State transportation departmenttransportation department, or its nominee, for such , or its nominee, for such purposes and subject to the conditions so specified.purposes and subject to the conditions so specified.

23 USC 317 (c) (d)23 USC 317 (c) (d)

(c) If at any time the need for any such lands or (c) If at any time the need for any such lands or materials for such purposes shall no longer exist, materials for such purposes shall no longer exist, notice of the fact shall be given by the State notice of the fact shall be given by the State transportation department to the Secretary and such transportation department to the Secretary and such lands or materials shall immediately lands or materials shall immediately revert to the revert to the control of the Secretary of the Department from which control of the Secretary of the Department from which they had been appropriatedthey had been appropriated. (d) The provisions of this . (d) The provisions of this section shall apply section shall apply only to projects constructed on a only to projects constructed on a Federal-aid system or under the provisions of chapter 2 Federal-aid system or under the provisions of chapter 2 of this titleof this title..

Letter of Consent = AuthorizationLetter of Consent = Authorization

Letter of Consent authorizes FHWA/DOT to enter on, Letter of Consent authorizes FHWA/DOT to enter on, construct, operate and maintain transportation facility construct, operate and maintain transportation facility on National Forest System lands within approved on National Forest System lands within approved ROW. Easement deed recording follows construction. ROW. Easement deed recording follows construction.

Forest Service must respond to application for LOC. Forest Service must respond to application for LOC. Failure results in appropriation of land for ROW w/o Failure results in appropriation of land for ROW w/o Stipulations.Stipulations.

Forest Service consent to the appropriation of NFS Forest Service consent to the appropriation of NFS lands for transportation right-of-way purposes is lands for transportation right-of-way purposes is conditioned on the following factors:conditioned on the following factors:

– Project is in public interestProject is in public interest– Consistent with land reservation (Forest Mgmt Plan).Consistent with land reservation (Forest Mgmt Plan).– Provide Stipulations necessary for adequate protection/use.Provide Stipulations necessary for adequate protection/use.

Letter of Consent - StipulationsLetter of Consent - Stipulations

Ten national stipulations. Additional stipulations Ten national stipulations. Additional stipulations may may be be added locally depending on issues/concerns added locally depending on issues/concerns associated with the project.associated with the project.

STANDARD STIPULATIONSSTANDARD STIPULATIONSThe State shall:

1. Before any clearing of the right-of-way or construction of the highway commences:

a. Prepare, in cooperation with the Regional Forester, a fire protection plan that sets forth in detail the fire prevention, presuppression, and

suppression measures that will be taken by the Grantee, its employees, contractors, and subcontractors, and their employees in all operations during the construction stage. The fire plan shall be made available to all bidders prior to letting contract and the Grantee shall cause its contractors to comply with all provisions of the fire plan and of all burning permits issued for disposal of flammable materials.

Forest Service Delegation to Sign Letter of Consent

Region Affected States LOC Signatory Region Contact

1(Northern)

Montana, Idaho (north of Salmon R)North Dakota

Regional Forester Terry Eganhoff(406) 329-3601

2(Rocky Mountain)

Colorado, NebraskaSouth Dakota, Wyoming (east of continental divide)

Regional Forester Deb Ryon(303) 275-5376

3(Southwestern)

Arizona, New Mexico

Forest Supervisor Bob Suedkamp(505) 842-3445

4(Intermountain)

Wyoming (Bridger-Teton NF), Nevada, Utah, California (Toiyabe NF), Idaho (south of Salmon R)

Forest Supervisor John Shochat(801) 625-5688

5(Pacific Southwest)

California, Hawaii Regional Forester Nancy Fleenor(707) 562-8971

6(Pacific Northwest)

Oregon, Washington Regional Forester Jim Davis(503) 808-3045

10(Alaska)

Alaska Regional Forester Roger Birk(907) 586-8843

Corridor Letter of ConsentCorridor Letter of Consent

Optional – can be used on long-term, multi-Optional – can be used on long-term, multi-section ‘corridor’ type transportation projects.section ‘corridor’ type transportation projects.

Consent includes the proposed permanent Consent includes the proposed permanent ROW ROW andand the use of contiguous lands needed the use of contiguous lands needed for construction (temporary areas).for construction (temporary areas).

Corridor areasCorridor areas are temporary and must be are temporary and must be included in the project NEPA and clearances.included in the project NEPA and clearances.

Corridor Letter of Consent - ExampleCorridor Letter of Consent - Example

Corridor Letter of Consent - ExampleCorridor Letter of Consent - Example

Easement Deeds – Facts & FictionEasement Deeds – Facts & Fiction

What What isis conveyed with ROW easement deed? conveyed with ROW easement deed? - - UseUse of national forest system lands for construction, of national forest system lands for construction, operation and maintenance of transportation facilities.operation and maintenance of transportation facilities. - Mineral materials are available “free” to DOT for public - Mineral materials are available “free” to DOT for public transportation projects, located transportation projects, located insideinside or or outsideoutside of the of the national forest, subject to the discretion of the Line national forest, subject to the discretion of the Line Officer. Mineral material permit required outside ROW.Officer. Mineral material permit required outside ROW.

What What is notis not conveyed with ROW easement deed? conveyed with ROW easement deed? - Fee title- Fee title - Federal minerals- Federal minerals - Merchantable timber- Merchantable timber - Non-transportation uses (safe & incompatible with ROW) - Non-transportation uses (safe & incompatible with ROW)

Temporary Land UsesTemporary Land Uses

Short and long-term land use authorizations Short and long-term land use authorizations outsideoutside the ROW (maintenance facilities, material stockpiling, the ROW (maintenance facilities, material stockpiling, gravel sources, wetland mitigation sites, plant sites, gravel sources, wetland mitigation sites, plant sites, etc.) normally require a Special Use Permit.etc.) normally require a Special Use Permit.

Forest Service is lead agency for permit, NEPA and Forest Service is lead agency for permit, NEPA and Decision. Decision.

Include temporary use areas within transportation Include temporary use areas within transportation project footprint (NEPA) if possible. project footprint (NEPA) if possible.

Working with the Forest Service

Involve the Forest Service Involve the Forest Service earlyearly in the ROW process. in the ROW process. Build a relationship.Build a relationship.

Many Forest Service staff have limited knowledge & Many Forest Service staff have limited knowledge & experience with the Federal Land Transfer process. experience with the Federal Land Transfer process.

Help Forest Service staff to understand the process Help Forest Service staff to understand the process and their roles and responsibilities. and their roles and responsibilities.

Transportation projects are just one of many Transportation projects are just one of many programs & workload commitments within the Forest programs & workload commitments within the Forest Service. They are often viewed as an unfunded Service. They are often viewed as an unfunded mandate. Be patient & get in line.mandate. Be patient & get in line.