The Fitzgerald Living Trust v. United States , 460 F.3d 1259 ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THE FITZGERALD LIVING TRUST, 
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA; MIKE
JOHANNS, Secretary of Agriculture; No. 04-16149
DALE N. BOSWORTH, Chief, United
States Forest Service; UNITED  D.C. No.
CV-02-00069-DKD
STATES FOREST SERVICE; HARV
OPINION
FORSGREN, Regional Forester,
Region III; and ELAINE ZIEROTH,
Forest Supervisor, Apache-
Sitgreaves National Forests,
Defendants-Appellees.*

Appeal from the United States District Court
for the District of Arizona
David K. Duncan, Magistrate Judge, Presiding
Argued and Submitted
April 4, 2006—San Francisco, California
Filed August 30, 2006
Before: Marsha S. Berzon, Johnnie B. Rawlinson, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Callahan
*Mike Johanns, Harv Forsgren, and Elaine Zieroth are substituted as
parties to this appeal for their predecessors Ann M. Veneman, Eleanor S.
Towns, and John C. Bedell. Fed. R. App. P. 43(c)(2).
10461
10464 THE FITZGERALD LIVING TRUST v. UNITED STATES
COUNSEL
Joel Spector (argued) and Alison Roberts (on the briefs),
Mountain States Legal Foundation, Lakewood, Colorado, for
the plaintiff-appellant.
Matthew J. Sanders, United States Department of Justice,
Environment & Natural Resources Division, Washington,
D.C., for the defendants-appellees.
THE FITZGERALD LIVING TRUST v. UNITED STATES 10465
OPINION
CALLAHAN, Circuit Judge:
The Fitzgerald Living Trust challenges the district court’s
summary judgment in favor of the Secretary of the United
States Department of Agriculture, the United States Forest
Service and individual Forest Service officials (“the Forest
Service”). We must decide the nature of the Trust’s right of
access over a national forest road, and whether the Forest Ser-
vice’s proposed statutory easement, providing the Trust with
access over the road, is reasonable.
I
In 1983, Raymond and Nancy Fitzgerald purchased the
O’Haco Cabins Ranch, a twenty-eight acre cattle ranch
located in northern Arizona approximately fifty miles south-
west of Winslow. The Fitzgeralds maintain a residence on the
property and have used and continue to use the ranch as a
base camp for their cattle grazing operations in the adjacent
Sitgreaves National Forest.1 The property contains a house,
with no electricity or generator, and a water source.
In 1920, President Wilson granted the O’Haco Cabin
Ranch property to Stelzer Tillman pursuant to the 1862
Homestead Act. Act of May 20, 1862, ch. 75, 12 Stat. 392-93
(1862) (codified at 43 U.S.C. §§ 161-284) (repealed 1976).
The patent transferred the tract of land “with the appurte-
nances thereof.” When the property was surveyed in 1916, it
contained simple improvements—a two-room log dwelling, a
1
In 1891, Congress passed the Forest Reserve Act, vesting the President
with the authority to reserve forest land from the public domain. 16 U.S.C.
§ 471 (repealed 1976). Pursuant to this act, in 1898 President McKinley
reserved the Black Mesa Forest Reserve, which later became known at the
Sitgreaves National Forest. In 1974, the Sitgreaves and Apache Forests
were administratively combined and are sometimes referred to jointly as
the Apache-Sitgreaves National Forests.
10466 THE FITZGERALD LIVING TRUST v. UNITED STATES
log and dirt root cellar, two pole corrals, and a well. The sur-
vey also noted the existence of a nine-mile rough trail from
the property leading to a forty-six-mile wagon road to Wins-
low. At the time the United States granted the O’Haco Cabins
Ranch to Tillman, the property was surrounded by the Sit-
greaves National Forest or by lands owned by third parties.
When Tillman obtained the property, he accessed it by cross-
ing the national forest or land owned by third parties.
When the Fitzgeralds purchased the O’Haco Cabins Ranch
in 1983, the property was completely surrounded by the Sit-
greaves National Forest. There were several access routes to
the property through the national forest. After the Fitzgeralds
purchased the ranch, the Forest Service closed all motorized
access to the property except for the primary access route,
Forest Development Road 56B (“FDR 56B”). Prior to the
spring of 1986, the Forest Service never attempted to restrict
the Fitzgeralds’ or their predecessors-in-interest’s use of FDR
56B. In the spring of 1986, however, the Forest Service asked
the Fitzgeralds to apply for a “special use permit” under the
Federal Land Policy Management Act (“FLPMA”), 43 U.S.C.
§§ 1701 - 1785, to continue using the road.2 The request was
made pursuant to the Forest Service’s determination that FDR
56B was no longer needed for public use and pursuant to its
program of having all uses under permit. The Fitzgeralds
applied for the permit but refused to accept it because they
2
Passed in 1976, FLPMA both recognizes preexisting rights-of-way,
and provides the Secretary of Agriculture with the authority to grant
rights-of-way for roads over lands administered by the Forest Service. 43
U.S.C. §§ 1761, 1769(a). The Act mandates that the government manage
public lands to promote environmental protection, recreation, and human
occupancy and use. 43 U.S.C. § 1701(a)(8). To that end, FLPMA directs
the Forest Service, when granting rights-of-way, to protect scenic and
esthetic values, fish and wildlife habitat, the environment, and the public
interest, and to achieve these goals by promulgating regulations. 43 U.S.C.
§§ 1764(c),(e); 1765(a)(ii),(b)(vi). FLPMA also requires that the United
States receive fair market value for use of the public lands. 43 U.S.C.
§ 1701(a)(9).
THE FITZGERALD LIVING TRUST v. UNITED STATES 10467
felt that they had a legal right to access their property without
executing any permit.
In 1988, based on a policy change, the Forest Service
offered the Fitzgeralds a “private road easement” under
FLPMA in lieu of the special use permit. The Fitzgeralds
refused the statutory easement as well. The Regional Forester
closed FDR 56B to motorized vehicles, and, in 1993, the
Chief of the Forest Service upheld the road closure decision.
The Fitzgeralds filed an earlier lawsuit challenging the road
closure and seeking to quiet title to a common law easement
over FDR 56B, but the case was dismissed as moot when the
proposed easement expired.3
In January, 2000, the Fitzgeralds submitted a new applica-
tion to the Forest Service for use of FDR 56B. The Forest Ser-
vice prepared a thirty-year private road easement with the
following notable conditions:
1. The Fitzgeralds were required to pay the fair
market value for the easement, set at $114.31
annually;
2. The Forest Service reserved the right to termi-
nate the easement if it decided that the road
would not remain private, provided it replace the
easement with a comparable easement; and
3. The Forest Service reserved the right to “sus-
pend, revoke, or terminate” the easement pursu-
ant to the Rules of Practice Governing Formal
Adjudicatory Administrative Proceedings insti-
tuted by the Secretary of Agriculture.4
3
Fitzgerald v. United States, 932 F. Supp. 1195 (D. Ariz. 1996), vacated
as moot No. CIV-94-0518-PCT-PRG (D. Ariz. July 19, 1999).
4
7 C.F.R. § 1.130-1.151. These rules provide for the filing and adjudica-
tion of an administrative complaint when, inter alia, an administrative
order is violated.
10468 THE FITZGERALD LIVING TRUST v. UNITED STATES
The Fitzgeralds did not accept this easement and instead
filed suit under the Quiet Title Act, 28 U.S.C. § 2409a, and
the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-
706. In their complaint, the Fitzgeralds alleged, inter alia, the
following: (1) they have an easement by necessity, an implied
easement under the Homestead Act, and an express easement
over FDR 56B; and (2) the Forest Service’s issuance of the
FLPMA easement is arbitrary and capricious because it
restricts their common law rights of access and it deprives
them of their statutory right of access under the Alaska
National Interest Lands Conservation Act, 16 U.S.C.
§ 3210(a) (“ANILCA”),5 and their right to a permanent ease-
ment under the National Forest Roads and Trails Act
(“NFRTA”), 16 U.S.C. §§ 532-538.
The district court granted summary judgment in favor of
the Forest Service, holding that the Forest Service has the
statutory authority under FLPMA and ANILCA to impose
restrictions on a private landowner’s ingress and egress over
national forest land and that the unrestricted use of FDR 56B
for many years did not trump this authority. The district court
concluded that the easement’s restrictions were reasonable,
and that the Forest Service did not abuse its discretion by
offering the Fitzgeralds an easement under FLPMA and not
pursuant to NFRTA.
While the district court held that any common law rights to
an easement were preempted by statute, citing to Adams v.
United States (Adams II), 255 F.3d 787, 794 (9th Cir. 2001)
5
ANILCA, passed in 1980, directs the Secretary of Agriculture to pro-
vide access to private property within the boundaries of the National For-
est System “as the Secretary deems adequate to secure to the owner the
reasonable use and enjoyment thereof” and provided that the “owner com-
ply with rules and regulations applicable to ingress and egress” over the
federal land. 16 U.S.C. § 3210. In this respect, ANILCA is not limited to
national forest land located in the state of Alaska, but rather applies
nationwide. Mont. Wilderness Ass’n v. U.S. Forest Serv., 655 F.2d 951,
957 (9th Cir. 1981).
THE FITZGERALD LIVING TRUST v. UNITED STATES 10469
(holding that “common law [easement] claims are preempted
by ANILCA and FLPMA where . . . the United States owns
the servient estate for the benefit of the public”), it also
reached the merits of the Fitzgeralds’ common law claims.
The court concluded that an easement by necessity did not
exist because FLPMA and ANILCA grant the Fitzgeralds
access to their property, obviating the necessity requirement
for such an easement. Moreover, it held that an implied ease-
ment did not exist because the Fitzgeralds’ right of access was
clearly expressed in those statutes, and, assuming arguendo
that an express easement was granted based on the 1920
patent language, it would still be subject to Forest Service
regulation.
The Fitzgeralds appealed.6 We have jurisdiction under 28
U.S.C. § 1291 and we affirm.
II
This court reviews the district court’s grant of summary
judgment de novo. Buono v. Norton, 371 F.3d 543, 545 (9th
Cir. 2004); Universal Health Servs. Inc. v. Thompson, 363
F.3d 1013, 1019 (9th Cir. 2004). We must determine, viewing
the evidence in the light most favorable to the nonmoving
party, whether there are any genuine issues of material fact
and whether the district court correctly applied the relevant
substantive law. Olsen v. Idaho State Bd. of Med., 363 F.3d
916, 922 (9th Cir. 2004).
6
On February 26, 2003, Raymond and Nancy Fitzgerald transferred the
O’Haco Cabins Ranch property to the Fitzgerald Living Trust. On Decem-
ber 10, 2004, the Clerk substituted the Fitzgerald Living Trust for Ray-
mond and Nancy Fitzgerald as parties to this appeal. Raymond and Nancy
Fitzgerald are trustees, and continue to use FDR 56B to access the prop-
erty. For the sake of continuity, we continue to refer to the appellants as
“the Fitzgeralds.”
10470 THE FITZGERALD LIVING TRUST v. UNITED STATES
III
The Fitzgeralds argue that they have a common law ease-
ment by necessity over FDR 56B, an easement implied from
the language contained in the Homestead Act, and an express
easement granted by the language of the 1920 land patent, and
because these easements establish preexisting rights of access,
they do not need to accept the Forest Service’s FLPMA ease-
ment to gain access to their property. Particularly, the Fitzger-
alds object to the revocable nature of the FLPMA easement
and the annual fee imposed for its fair market value because
these conditions would fundamentally change the nature of
any common law interest they own over FDR 56B.
[1] FLPMA and ANILCA clearly subject the Fitzgeralds’
access over Forest Service land to the statutory permitting
process. Adams II, 255 F.3d at 795. While the Forest Service
is correct to note that it has the authority under Adams II to
impose some regulations on the use of FDR 56B regardless of
any common law easement held by the Fitzgeralds, this still
leaves open the question of whether the regulations imposed
are reasonable. For such an inquiry, whether the Fitzgeralds
have a common law easement is relevant. For instance, gov-
ernment counsel acknowledged at oral argument that the fee
provision of the FLPMA easement would be unreasonable
under the APA if the Fitzgeralds owned a preexisting ease-
ment because the Forest Service would be imposing a fee for
something the Fitzgeralds already owned. Accordingly, we
will review the Fitzgeralds’ Quiet Title claims to determine
whether the proposed FLPMA easement is reasonable.
[2] Skranak v. Castenada, 425 F.3d 1213 (9th Cir. 2005),
supports our conclusion that a determination of common law
rights is relevant to the reasonableness of the FLPMA ease-
ment. In Skranak, the owners of mining claims filed com-
plaints in the district court under the Quiet Title Act and the
APA after the Forest Service denied them unconditional spe-
cial use permits to access their claims. Id. at 1216. They chal-
THE FITZGERALD LIVING TRUST v. UNITED STATES 10471
lenged the Forest Service’s failure to resolve whether they
owned any pre-existing easements to their claims, arguing
that the Forest Service violated its own regulation, 36 C.F.R.
§ 251.114(f)(1), by refusing to do so.7 Id. at 1218-19. The dis-
trict court disposed of their common law easement claims by
concluding that neither plaintiff owned an easement under any
theory, and that even if either did, ANILCA extinguished
them. Id. at 1216. The court also denied plaintiffs’ APA
claims, concluding that the special use permit conditions were
reasonable. Id.
This court reversed the district court’s APA determinations,
concluding that § 251.114(f) requires the Forest Service to
address the plaintiffs’ common law easement claims advanced
in their applications for a FLPMA permit. Id. at 1221. The
court recognized that requiring an easement-ownership deter-
mination under § 251.114(f) presented a potential conflict
with the holding in Adams v. United States (Adams I), 3 F.3d
1254, 1259 (9th Cir. 1993), that access under ANILCA is
determined without respect to any preexisting easements.
Skranak, 425 F.3d at 1219-20. Skranak resolved this potential
conflict by holding that deference to the Forest Service’s reg-
ulation was appropriate under National Cable & Telecommu-
nications Ass’n v. Brand X Internet Services, 125 S. Ct. 2688(2005). 425 F.3d at 1220. National Cable requires that defer-
ence be given to an agency’s interpretation of a statute unless
a prior court decision has held that the statute is incompatible
with the agency’s interpretation. 125 S. Ct. at 2700-01. It
explained that a prior judicial construction of a statute trumps
an agency’s interpretation only if a prior court decision
“leaves no room for agency discretion.” Id. at 2700. Because
neither Adams I nor Adams II held that ANILCA was unam-
biguous or that the court’s interpretation of ANILCA left no
7
36 C.F.R. § 251.114(f) provides: “[T]he 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.”
10472 THE FITZGERALD LIVING TRUST v. UNITED STATES
room for agency discretion, Skranak held that the Adams
cases did not obviate the requirement that an easement-
ownership determination be made under § 251.114(f). 425
F.3d at 1220.
[3] Unlike the plaintiffs in Skranak, the Fitzgeralds do not
assert that the Forest Service violated the APA by failing to
determine their common law rights before issuing the FLPMA
easement. Nevertheless, Skranak is important because it
instructs that the existence of a preexisting easement, as
claimed by the Fitzgeralds, is relevant to the Forest Service’s
issuance of a statutory easement under FLPMA.
IV
An Implied Easement Under the Homestead Act
The Fitzgeralds argue that Congress granted settlers under
the Homestead Act an implied easement to access their land,
maintaining that the right is implied from the statutory lan-
guage entitling persons “to enter . . . unappropriated public
lands” to establish homesteads. 43 U.S.C. § 161 (repealed
1976). The Fitzgeralds contend that, like statutory railroad
land grants, the Homestead Act should be construed liberally,
and that without an implied right to cross public lands freely,
a homesteader could not settle the land as Congress intended.
The Forest Service responds by pointing to the rule that
unless the language in a land grant is clear and explicit, the
grant will be construed to favor the government so that noth-
ing passes by implication, citing to Watt v. Western Nuclear,
Inc., 462 U.S. 36, 59 (1983), Andrus v. Charlestone Stone
Products Co., 436 U.S. 604, 617 (1978), and Albrecht v.
United States, 831 F.2d 196, 198 (10th Cir. 1987). It also
urges that implying an easement into the Homestead Act
would render meaningless language in the Forest Service
Organic Administration Act of 1897, 16 U.S.C. §§ 473-482,8
8
The 1897 Organic Act authorized the Secretary of Agriculture to make
rules and regulations to protect the national forests. 16 U.S.C. §§ 473-482.
THE FITZGERALD LIVING TRUST v. UNITED STATES 10473
FLPMA, and ANILCA that provides for express rights of
access to inholders.
[4] While we accept the Fitzgeralds’ argument that the
Homestead Act contemplated an inholder’s access to his prop-
erty over public lands, we agree with the Tenth Circuit’s hold-
ing in United States v. Jenks, 129 F.3d 1348, 1354 (10th Cir.
1997), that the access across government lands implied into
the Homestead Act is not an implied easement. Jenks con-
cluded that settlers had an implied license to use public lands
to access their property, relying on Buford v. Houtz, 133 U.S.
320 (1890). 129 F.3d at 1354. Burford described the access to
public lands in the nineteenth century as an implied license
growing out of custom where lands were left open and no act
of government forbade their use. 133 U.S. at 326. Impor-
tantly, the Court later clarified that the use of public lands to
graze livestock did not confer any vested right on the public.
See Light v. United States, 220 U.S. 523, 535 (1911). Given
the custom of unfettered use of public lands in 1862 when
Congress passed the Homestead Act and the Supreme Court’s
refusal to characterize a settler’s use of public lands as a
vested property right, we conclude that Congress did not
imply an easement over public lands into the 1862 Homestead
Act.
[5] In sum, we hold that the Homestead Act did not grant
settlers a vested property right of access over public lands to
their homesteads, but instead merely sanctioned the long-
standing customary use of public lands by a settler. Moreover,
we reject the Fitzgeralds’ assertion that even if the Homestead
Act only established an implied license for a settler to access
his homestead, the license was transformed into an easement
when, in 1920, the Fitzgeralds’ predecessor-in-interest
obtained the patent to the O’Haco Cabins Ranch. The Fitzger-
The Act protects the egress and ingress over the national forests of settlers
residing within the boundaries of the forests. 16 U.S.C. § 478.
10474 THE FITZGERALD LIVING TRUST v. UNITED STATES
alds cite to no authority that the grant of a patent changes the
nature of a settler’s access to his homestead into a vested
property right, and we have found none. Our conclusion is
also supported by the 1897 Organic Act and ANILCA, pro-
viding for a right of access over federal land. Indeed, if the
Homestead Act granted a vested access right over federal
land, there would have been no need for Congress to subse-
quently provide for such a right.
Easement by Necessity
The Fitzgeralds rely on United States v. Dunn, 478 F.2d
443 (9th Cir. 1973), and Jenks to suggest that it is well-settled
that an easement by necessity against the United States exists.
We do not agree. In Dunn, successors-in-interest to a South-
ern Pacific Railroad Company land patent challenged the dis-
trict court’s summary judgment for the United States that
rejected the plaintiffs’ claim to an easement by implication
and necessity. Id. at 444-46. We reversed, concluding that a
question of fact existed as to the necessity and the scope of
the easement. Id. at 446. The government did not argue in
Dunn that an easement by necessity was unavailable against
the United States. Id. at 444 n.2. However, the dissenting
judge concluded that the doctrine of easement by necessity
was not binding on the United States under the facts presented
in that case. Id. at 446 (Wright, J., dissenting). The majority
responded to the dissent’s position by stating in a footnote
that “[s]ince the government did not, in our judgment, raise
the point . . . we have not discussed it in the opinion,” but
went on to say “nevertheless [we] did give it due consider-
ation and concluded that it lacked merit.” Id. at 444 n.2. We
read this statement as declining to render a holding on the
question because it was not properly raised, while expressing
the tentative views of the panel majority on the question.
Thus, Dunn is at most persuasive authority for the argument
that an easement by necessity may be taken against the United
States when it owns the servient tenement.
THE FITZGERALD LIVING TRUST v. UNITED STATES 10475
Moreover, in Jenks the Tenth Circuit did not decide
whether successors-in-interest to land patented under the
Homestead Act obtained an easement by necessity against the
United States because it concluded instead that a necessity did
not exist in that case. 129 F.3d at 1353. Jenks acknowledged
the differing views regarding an easement by necessity
against the United States, citing to a property treatise favoring
the recognition of an easement by necessity against the United
States, and a 1980 United States Attorney General Opinion
concluding that the common law easement by necessity does
not apply to federal lands. Id. at 1354 (citing 4 Richard R.
Powell, Powell on Real Property § 34.07 at 34-76 (rev. ed.
1997), and Rights-of-Way Across Nat’l Forests, 43 Op. Att’y
Gen. 243, 255 (1980)).
[6] We find ourselves in the same position as the Jenks
court—not having to decide now whether, as a matter of law,
an easement by necessity may be taken against the United
States. This is because the Fitzgeralds do not meet the com-
mon law elements of an easement by necessity.
[7] An easement by necessity is created when: (1) the title
to two parcels of land was held by a single owner; (2) the
unity of title was severed by a conveyance of one of the par-
cels; and (3) at the time of severance, the easement was neces-
sary for the owner of the severed parcel to use his property.
Mont. Wilderness Ass’n v. U.S. Forest Serv., 496 F.Supp. 880,
885 (D. Mont. 1980), 4 Richard R. Powell, Powell on Real
Property § 34.07 (2006). An easement by necessity is not
defeated by the grantee’s ability to access a public road over
a stranger’s property. Powell, supra, at § 34.07[1], [3]. More-
over, the easement is extinguished once the necessity is no
longer present. Id. at § 34.19.
[8] The Fitzgeralds argue that they have an easement by
necessity over FDR 56B because when the United States
granted the patent to Tillman in 1920, the O’Haco Cabins
Ranch was surrounded by land owned by the United States or
10476 THE FITZGERALD LIVING TRUST v. UNITED STATES
by third parties. This argument fails because, in addition to
any right of access provided by the 1897 Organic Act,
FLPMA and ANILCA provide statutory rights of access that
would destroy any easement by necessity. Jenks, 129 F.3d at
1353-54.
An Express Easement Under the 1920 Patent
The Fitzgeralds argue that they own an express easement
over FDR 56B based on the language “with the appurtenances
thereof” contained in the 1920 patent to Tillman.9 They urge
that this language grants all things necessary for the use and
enjoyment of the land and that an easement over the Sit-
greaves National Forest was included as an appurtenance to
the O’Haco Cabins Ranch because without this easement, the
land would be worthless.
[9] The Tenth Circuit rejected this argument in Jenks. Jenks
concluded that an express easement was not created by the
inclusion of the words “with the appurtenances thereof.” 129
F.3d at 1355. We agree. While the word “appurtenance” will
carry with it an existing easement, it will not create the ease-
ment. Humphreys v. McKissock, 140 U.S. 304, 314 (1891);
see also 25 Am Jur 2d Easements and Licenses in Real Prop-
erty § 15 (2004) (“The intent to grant an easement must be so
manifest on the face of the instrument . . . that no other con-
struction can be placed on it.”). Even assuming that the rough
trail noted in the 1916 survey became FDR 56B, we conclude
that the language “with the appurtenances thereof” lacks the
intent and the specificity to convey an easement over the trail.
9
The patent to the O’Haco Cabins Ranch reads:
NOW KNOW YE, That there is, therefore, granted by the
UNITED STATES unto the said [grantee] the tract of Land above
described; TO HAVE AND TO HOLD the said tract of Land,
with the appurtenances thereof, unto the said [grantee] and to the
heirs and assigns of the said [grantee] forever[.]
THE FITZGERALD LIVING TRUST v. UNITED STATES 10477
V
[10] The Constitution provides Congress with the authority
to “make all needful Rules and Regulations respecting the . . .
Property belonging to the United States.” U.S. Const. art. IV,
§ 3, cl. 2. The fair market value annual fee mandated by
FLPMA is within the bounds of Congressional authority.
Because the Fitzgeralds do not have a common law easement
over FDR 56B, they are not being required to pay an annual
use fee for something they already own. Except for their dis-
pute over whether they already own the easement, the Fitzger-
alds do not challenge the Forest Service’s calculation of the
fee. Accordingly, we conclude that the $114 annual use fee is
reasonable.
[11] We conclude further that the conditions in the ease-
ment providing for the suspension, revocation, or termination
of the easement also are reasonable. FLPMA vests the Forest
Service with the discretion to restrict the “duration, . . . trans-
fer or assignment, and termination” of a FLPMA easement.
43 U.S.C. § 1764(c). A termination provision conditioned
upon the Forest Service’s issuing a replacement easement or
the initiation of administrative proceedings based on a viola-
tion of the easement is reasonable.
VI
[12] Lastly, the Fitzgeralds challenge the Forest Service’s
refusal to provide them with an easement under NFRTA.
NFRTA was passed out of concern for the construction and
maintenance of roads and trails within and near the national
forests to meet the increasing demands for timber, recreation,
and other uses of the national forests. 16 U.S.C. § 532. It pro-
vides for the granting of easements to applicants who are par-
ticipating in the construction and maintenance of the national
forest road system. H.R. Rep. 88-1920 (1964). These ease-
ments are provided without cost.
10478 THE FITZGERALD LIVING TRUST v. UNITED STATES
[13] The Fitzgeralds are not entitled to a NFRTA easement
because they are not using FDR 56B to assist the Forest Ser-
vice in managing the Sitgreaves National Forest. Given the
intent of the statute, there is no support for the Fitzgeralds’
argument that the Forest Service erred by failing to exercise
its discretionary power to provide a NFRTA easement or by
failing to offer any reason for not doing so.
VII
[14] FLPMA vests the Secretary of Agriculture with the
authority to regulate access over the Sitgreaves National For-
est. 43 U.S.C. § 1761(a). The FLPMA easement offered to the
Fitzgeralds, who hold no common law easements over the for-
est service land, is a reasonable exercise of that authority.
Accordingly, the district court’s judgment is AFFIRMED.