McFarland v. Kempthorne

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN JAMES MCFARLAND, 
Plaintiff-Appellant,
v.
DIRK KEMPTHORNE, in his capacity
as Secretary of the Department of No. 06-36106
the Interior; SUZANNE LEWIS, in her
capacity as Superintendent of D.C. No.
Glacier National Park; UNITED  CV-00-00020-M-
STATES OF AMERICA; NATIONAL DWM
PARK SERVICE, OPINION
Defendants-Appellees,
NATIONAL PARKS CONSERVATION
ASSOCIATION,
Defendant-intervenor-
Appellee.

Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, Chief District Judge, Presiding
Argued and Submitted
May 7, 2008—Seattle, Washington
Filed October 2, 2008
Before: Arthur L. Alarcón, Susan P. Graber, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Rawlinson
14039
14042 MCFARLAND v. KEMPTHORNE
COUNSEL
Ronald W. Opsahl (briefed and argued), William P. Pendley
(briefed), Mountain States Legal Foundation, Lakewood, Col-
orado, for the plaintiff-appellant.
William B. Lazarus (briefed), Elizabeth A. Peterson (briefed
and argued), United States Department of Justice, Washing-
ton, D.C., for the defendants-appellees.
William J. Friedman (briefed), Charles H.P. Vance (briefed
and argued), Covington & Burling LLP, Washington, D.C.;
Jack R. Tuholske (briefed), Missoula, Montana, for the
defendant-intervenor-appellee.
OPINION
RAWLINSON, Circuit Judge:
Appellant John J. McFarland (McFarland) contends that the
district court erred in granting the defendants’ motion for
summary judgment. He asserts that he is entitled to an ease-
ment over Glacier Route 7 to access his property that is sur-
rounded by Glacier National Park. Because McFarland cannot
claim a common-law easement over federal land and because
the National Park Service’s (Park Service) denial of his per-
mit request was neither arbitrary nor capricious, and was in
accordance with governing law, we affirm the decision of the
district court.
MCFARLAND v. KEMPTHORNE 14043
I. FACTS AND PROCEDURAL HISTORY
McFarland owns a 2.75 acre plot of land (the Property)
located within the boundaries of Glacier National Park, in an
area commonly known as “Big Prairie.” The Property was
conveyed to McFarland’s predecessor in interest, Charles
Schoenberger, in 1916 by a federal patent under the Home-
stead Act of 1862. The patent read: “TO HAVE AND TO
HOLD the said tract of Land, with the appurtenances thereof,
unto the said claimant and to the heirs and assigns of the said
claimant, forever.”
Glacier Route 7 passes through what is now Glacier
National Park. It is, and always has been, the only road over
which McFarland and his predecessors have had motorized
access to the Property. Although the Park Service has prohib-
ited snowmobiling in Glacier National Park since 1975 and
has generally closed Glacier Route 7 to automobiles during
the winter season, the Park Service continued to allow
inholders some degree of motorized access over Glacier
Route 7 in winter months until 1999.1 In December, 1999, the
Park Service notified McFarland that it would no longer allow
inholders motorized access to Glacier Route 7 once it was
closed to the general public. The Park Service stated that it
was implementing this policy to protect wildlife and public
recreational opportunities.
A. Administrative Proceedings
In response to the Park Service’s announcement that it
would close Glacier Route 7 to inholders, McFarland filed an
application for a special use permit. He requested year-round
permission for his family and guests to drive a vehicle on Gla-
cier Route 7 between the Property and the Polebridge Ranger
1
As the district court noted in its Order granting the Defendant’s Motion
for Summary Judgment, the parties dispute the extent of motorized access
permitted to inholders during the winter season prior to 1999.
14044 MCFARLAND v. KEMPTHORNE
Station. Additionally, McFarland requested permission to use
a snowmobile when “road conditions make it unsafe or
unpractical to drive . . .” The Park Service denied the permit
request. McFarland’s administrative appeal was also denied.
The Park Service explained its denial of McFarland’s per-
mit application by reference to previous correspondence, in
which it explained that its policy decision to close Glacier
Route 7 to motorized traffic during the winter was “made to
protect wildlife concerns and public recreation values.” The
Park Service also referred to its 1975 determination, follow-
ing “an Environmental Assessment that included extensive
public review,” that snowmobiles are “an incompatible public
use.” The 1975 determination was reaffirmed by the park’s
1999 General Management Plan.
In the context of denying McFarland’s permit application
the Park Service reasserted the authority of the Superintendent
to enact public closures “based upon a determination that:
such action is necessary for the maintenance of public health
and safety, protection of environmental or scenic values, pro-
tection of natural or cultural resources, aid to scientific
research, implementation of management responsibilities,
equitable allocation and use of facilities, or the avoidance of
conflict among visitor use activities.”
Mike Snyder, the Deputy Regional Director, affirmed that
denial of McFarland’s permit request was consistent with the
Park Service’s determination that use of snowmobiles would
create visitor use conflicts and disturb wildlife habitats.
B. Federal Court Proceedings
McFarland filed suit in the United States District Court for
the District of Montana, seeking to quiet title to an easement
over Glacier Route 7. McFarland claimed an easement by
necessity, an easement implied from the Homestead Act, and
an express easement under the terms of the Schoenberger land
MCFARLAND v. KEMPTHORNE 14045
patent. McFarland also alleged that the denial of his applica-
tion for a special use permit violated the Administrative Pro-
cedure Act, 5 U.S.C. § 706(2). The district court originally
dismissed McFarland’s claims, concluding that they were
barred by the Quiet Title Act’s twelve-year statute of limita-
tions. We reversed and remanded the case to the district court.
See McFarland v. Norton, 425 F.3d 724, 729 (9th Cir. 2005).
On remand, the district court granted summary judgment in
favor of the defendants. McFarland filed a timely appeal.
II. DISCUSSION
“This court reviews the district court’s grant of summary
judgment de novo.” Fitzgerald Living Trust (Fitzgerald II) v.
United States, 460 F.3d 1259, 1263 (9th Cir. 2006) (citations
omitted). “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.” Id. (cita-
tion omitted).
Under the Administrative Procedure Act, an agency deci-
sion will be set aside only if it is “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.”
5 U.S.C. § 706(2)(A). A federal court may not substitute its
judgment for that of the agency. See United States Postal
Serv. v. Gregory, 534 U.S. 1, 7 (2001). An agency decision
may be reversed only if the agency “relied on factors which
Congress has not intended it to consider, entirely failed to
consider an important aspect of the problem, offered an expla-
nation for its decision that runs counter to the evidence before
the agency, or is so implausible that it could not be ascribed
to a difference in view or the product of agency expertise.”
Safari Aviation Inc. v. Garvey, 300 F.3d 1144, 1150 (9th Cir.
2002) (citation and internal quotation marks omitted). We
must, however, ensure that the agency has “articulated a ratio-
nal connection between the facts found and the choice made.”
14046 MCFARLAND v. KEMPTHORNE
Sierra Club v. EPA, 346 F.3d 955, 961(citation and alteration
omitted), as amended by 352 F.3d 1186 (9th Cir. 2003).
McFarland contends that he is entitled to an easement over
Glacier Route 7 to access his property. McFarland lays claim
to an easement by necessity, an easement implied from the
Homestead Act, and an easement expressed in the federal land
patent to his predecessor-in-interest. Additionally, McFarland
posits that the Park Service’s denial of his special use permit
was arbitrary, capricious, and otherwise not in accordance
with the law.
We conclude that the district court properly granted the
defendants’ motion for summary judgment. McFarland has no
valid claim to an easement. To the extent he has a right to
access his property across federal land, that right is subject to
the reasonable regulation of the Park Service, implemented
through the permitting process. The Park Service’s denial of
McFarland’s special use permit was not arbitrary, capricious,
or in violation of the law.
A. Easement Claims
Federal law governs a claim of easement over lands owned
by the United States. See Superior Oil Co. v. United States,
353 F.2d 34, 37 n.4 (9th Cir. 1965). McFarland acknowledges
that federal law governs the claimed easement in this case, but
asserts that state law is “instructive” on points not addressed
by federal law. However, the “instructive” value of state law
is limited by federal interests. See United States v. Standard
Oil Co. of Cal., 332 U.S. 301, 309-10 (1947). Considering the
parameters articulated in Standard Oil, the strong federal
interest in the management of federal land weighs against the
importation of state law to resolve the present case. See Fitz-
gerald (Fitzgerald I) v. United States, 932 F. Supp. 1195,
1201 (D. Ariz. 1996) (noting that the Federal Land Policy and
Management Act (FLPMA) consolidated authority to grant
rights-of-way over federal land by “repeal[ing] over thirty
MCFARLAND v. KEMPTHORNE 14047
statutes granting rights-of-way across federal lands and vest[-
ing] in the Secretaries of Agriculture and the Interior [the]
authority to grant, issue, or renew rights of way over . . . pub-
lic lands . . .”) (citation, alteration and internal quotation
marks omitted).
1. Easement by Necessity
[1] The doctrine of easement by necessity applies, gener-
ally, against the United States. Mont. Wilderness Ass’n v.
United States Forest Serv., 496 F. Supp. 880, 885 (D. Mont.
1980); see also United States v. Dunn, 478 F.2d 443, 444 &
n.2 (9th Cir. 1973). “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 parcels; and (3) at the time of severance, the ease-
ment was necessary for the owner of the severed parcel to use
his property.” Fitzgerald II, 460 F.3d at 1266 (citations omit-
ted).
[2] However, an easement by necessity does not exist if the
claimant has another mode of access to his property. See id.;
see also Mackie v. United States, 194 F. Supp. 306, 308 (D.
Minn. 1961). In fact, necessity may be defeated by alternative
routes or modes of access—no matter how inconvenient. See
Mackie, 194 F. Supp. at 308 (finding no necessity where
plaintiff could drive within one-third mile of a lake, carry his
supplies to the lake, load a boat and cross the lake to his prop-
erty). McFarland has year-round access to his property over
Glacier Route 7. In the winter, this access is limited to non-
motorized means. We conclude that even subject to the sea-
sonal limitations imposed by the Park Service, and in spite of
the associated inconvenience, McFarland enjoys sufficient
access to his property to defeat a finding of easement by
necessity.
2. Express Easement Claim
[3] McFarland contends that he is the holder of an express
easement arising from the language of the Schoenberger
14048 MCFARLAND v. KEMPTHORNE
Patent, which conveys the property “with the appurtenances
thereof.” We rejected a similar argument in Fitzgerald II,
where a property owner also claimed an express easement
over federal land based on the term “appurtenances” in the
land patent. 460 F.3d at 1267. “While the word ‘appurte-
nance’ will carry with it an existing easement, it will not
create the easement.” Id. (citations omitted); see also United
States v. Jenks, 129 F.3d 1348, 1355 (10th Cir. 1997). Thus,
unless an easement existed at the time of the grant, McFarland
holds no easement. See Jenks, 129 F.3d at 1355. As discussed
above, McFarland could not claim an easement at the time of
the grant, and his argument is undermined by his own repre-
sentation that his “predecessor’s . . . access into his property
. . . was not protected by any county road easement or other
guarantee of continued access.”
McFarland cites Hunter v. United States, 388 F.2d 148,
153-54 (9th Cir. 1967), and Humphreys v. McKissock, 140
U.S. 304, 314 (1891), to support his claim of an express ease-
ment. Both cases are distinguishable. Hunter involved a ques-
tion of what rights were appurtenant to an appropriated water
right on federal land. 388 F.2d at 153-54. The court held that
a grazing right was not appurtenant to the water rights
because it was not necessary to the utilization of the water
rights. Id. at 154. Similarly, Humphreys addressed whether an
elevator was appurtenant to a railroad. 140 U.S. at 314-15.
The discussion of the meaning of “appurtenant” in these cases
in no way bolsters McFarland’s argument or blunts the hold-
ing of Fitzgerald II that an express easement must be
expressly conveyed.
3. Implied Easement
[4] McFarland contends that he is the holder of an easement
implied from existing use, created at the time of the land
patent under the Homestead Act by virtue of seven years of
“use so long and manifest as to show that it was meant to be
permanent.” McFarland attempts to bolster this argument by
MCFARLAND v. KEMPTHORNE 14049
pointing to the Homestead Act’s language recognizing a right
“to enter” public lands to establish a homestead. However,
Fitzgerald II makes clear that this language does not create an
implied easement. See 460 F.3d at 1265 (“[T]he Homestead
Act did not grant settlers a vested property right of access
over public lands to their homesteads, but instead merely
sanctioned the longstanding customary use of public lands by
a settler.”). Moreover, application of the common-law doc-
trine of easement implied by prior use is not appropriate in
this case, where title was taken by way of a public grant. “In
a public grant nothing passes by implication, and unless the
grant is explicit with regard to the property conveyed, a con-
struction will be adopted which favors the sovereign . . .”
Albrecht v. United States, 831 F.2d 196, 198 (10th Cir. 1987)
(citation omitted). Although the government has historically
provided for access across federal land to reach privately
owned inholdings, that access was granted in the form of a
license. See Jenks, 129 F.3d at 1353-55.
B. Regulation of Access
[5] The Property Clause gives Congress plenary power to
regulate the use of federal land. U.S. Const. art. IV, § 3, cl.
2; see United States v. Gardner, 107 F.3d 1314, 1318 (9th Cir.
1997) (recognizing that “the power over the public land thus
entrusted to Congress [under the Property Clause] is without
limitations”) (citations and alteration omitted). The Park Ser-
vice’s authority to regulate use of federal land within the Park
is rooted in the Constitution and the National Park Service
Organic Act (Organic Act), 16 U.S.C. § 1. See Bicycle Trails
Council of Marin County v. Babbitt, 82 F.3d 1445, 1454 (9th
Cir. 1996), as amended. The Secretary’s authority “applies
with equal force to regulating an established right of way
within the park.” United States v. Vogler, 859 F.2d 638, 642
(9th Cir. 1988) (citation omitted). Even where a statutory
right of access exists, the Park Service has broad discretion to
regulate its use. See Hale v. Norton, 476 F.3d 694, 699-700
(9th Cir. 2007), cert. den. sub nom. Hale v. Kempthorne, 128
14050 MCFARLAND v. KEMPTHORNE
S. Ct. 804 (2007). The proper mechanism for such regulation
is the permitting process. See Adams v. United States, 255
F.3d 787, 795 (9th Cir. 2001).
C. Special Use Permit
McFarland contends that the denial of his special use per-
mit was arbitrary and capricious, an abuse of discretion, and
otherwise not in accordance with the law. McFarland
expressly asserts that the Park Service “failed to articulate a
satisfactory explanation for its decision.”
[6] McFarland’s reliance on Motor Vehicle Mfrs. Ass’n
(Motor Vehicle) v. State Farm Mutual Auto. Ins. Co., 463
U.S. 29, 43 (1983), and Ry. Labor Executives’ Ass’n v. Inter-
state Commerce Comm’n, 784 F.2d 959, 964 (9th Cir. 1986),
is misplaced. An agency must “articulate a satisfactory expla-
nation for its action . . .” Motor Vehicle, 463 U.S. at 43 (cita-
tion omitted). However, the critical factor in Motor Vehicle
was that the agency “submitted no reasons at all” for its deci-
sion. Id. at 50.
Similarly, in Ry. Labor Executives’ Ass’n, we declined to
enforce an agency order due to its “total failure to articulate
any reason for refusing to impose labor protections[,]” mak-
ing it “impossible for us as a reviewing court to understand
why the [agency] chose to deny rather than impose protec-
tions . . .” 784 F.2d at 975.
[7] McFarland contends that the Park Service did not con-
sider facts unique to his situation. However, a court “will . . .
uphold a decision of less than ideal clarity if the agency’s path
may be reasonably discerned.” Motor Vehicle, 463 U.S. at 43(citations and internal quotation marks omitted). The National
Park Service’s written decision and other correspondence
clearly explained its reasons for closing the road and declin-
ing to make an exception for McFarland. The agency’s path
to its decision is easily followed by reading the correspon-
MCFARLAND v. KEMPTHORNE 14051
dence between the Park Service and McFarland. Ultimately,
the Park Service determined that its concerns for wildlife and
recreation in the national park justified closing Glacier Route
7 to motorized vehicles during the winter season.
[8] “If an agency’s determination is supportable on any
rational basis, we must uphold it.” Voyageurs Nat’l Park
Ass’n v. Norton, 381 F.3d 759, 763 (8th Cir. 2004) (citation
omitted). “This is especially true when an agency is acting
within its own sphere of expertise.” Id. (citation omitted). As
in Voyageurs National Park Ass’n, the Park Service acted
within the sphere of its expertise when it decided not to grant
McFarland’s request. Cf. id. at 763-64 (deferring to the Park
Service in an analogous circumstance). Therefore, we con-
clude that the Park Service did not act arbitrarily, capri-
ciously, or in violation of law when it denied McFarland’s
permit request.
III. CONCLUSION
McFarland is not entitled to an easement by necessity. Nor
was an easement expressly granted in the original land patent
or implied through language of the Homestead Act or through
McFarland’s use of Glacier Route 7. Finally, the Park Service
provided adequate explanation of the denial of McFarland’s
permit request to allow us to determine that it did not act arbi-
trarily, capriciously, or in violation of law. Accordingly, we
affirm the district court’s entry of judgment in favor of the
government defendants.
AFFIRMED.