United States v. Jenks, 804 F. Supp. 232 (D.N.M. 1992)
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Zavitz, William L. Lutz, U. Stewart, U. Robert M. Hall, Douglas W. Johns, Ariz. The subjects of this memorandum opinion and order are cross motions for summary judgment filed on December ways, This suit arises from defendant's refusal to comply with plaintiff's request that defendant "apply for and obtain a private road easement to document his right of access across lands within the National Forest System and to extinguish any claim of prior right which Jenks asserts.
Jenks has refused to apply for a legal right of access to the three roads in question on the premise that he has a preexisting legal right of access over free dating sites in qatar of these roads.
Thus, argues Jenks, he does not have to apply for an easement from the government since these pre-existing access rights are preserved in all relevant statutes.
Plaintiff recognizes that Jenks has a right of access to his ranches, but takes the position that the government has the right, and moreover the obligation, to regulate Jenks' access rights.
Ranch, and the Patruff Ranch. The lands which comprise the ranches were patented by dating United States to defendant Jenks' predecessors in interest. Because the ranches are surrounded by National Forest lands, i. The Centerfire Bog Ranch has two means of access; one services the northern portion "northern access" and the other services the southern portion "Centerfire Bog Road". The Double J. Ranch and Patruff Ranch each have only one means of access which are referred to as the "Double J.
Rocks and the "Patruff Road" respectively. In the early 's, the Forest Service contacted Jenks and offered to provide Jenks with a legal right of access across the roads through the execution of a private road easement with respect to each road so that Jenks may legally continue to use the roads. The easements would impose dating gifhorn immobilien deutschland munchen schokoladenfabrik conditions which regulate the use of the roads dating girl vijaypur city furniture prevent harm to Icd 10 code for early pregnancy dating Forest Service lands such as compliance with public safety, health and environmental laws, traffic control regulations if the inholding land is developed for residential purposes, notice of transfer of ownership of the inholding, approval of plans to construct and reconstruct the roads, maintenance of the roads, indemnification for losses to the government in accordance with applicable laws or other claims arising out of the inholder's use of the roads including fire suppression costs, and termination provisions in the event the roads become public roads.
Additionally, the government requires that Jenks pay a fee for such access rights based on the fair market value of the right acquired as determined by appraisal. Jenks states that he would not have purchased the ranches, or he would have done so at a substantially reduced price, if he had known at the time of purchase that the Forest Service could charge him a fee to use the roads or impose any restrictions on his road use. News at FLPMA further provides:. Finally, FLPMA contained a savings provision which stated: "Nothing in this Act, or in any amendment made by this Act, shall be construed as terminating any valid lease, permit, patent, right-of-way, or other land use right or authorization existing on the date of approval of this Act.
Jenks argues that he has rights of access to his inholdings 1 under Revised Statute43 U. Sierra Club v. Utah ; Wilkenson v. The New Mexico courts have interpreted R. Lovelace v. Hightower, 50 N. Williams, 43 N. Frank A. Hubbell Co. Gutierrez, 37 N. Plaintiff argues that each of the roads in question was developed after the reservation of the forest, that is, at a time when the lands were no longer public lands, and thus, Jenks and his predecessors had no prior rights under R.
The Act of March 3,Chap. Such reservation severs the reserved lands from the public domain and withdraws them from public lands. Scott v. State of Utah, F. Plaintiff and defendant agree that the land surrounding all three ranches was made part of the Gila River Forest Reserve by presidential proclamation in Thus, all three roads were developed after the reservation of the Gila Forest Reserve. However, defendant argues that because there were other public roads which crossed the Centerfire Bog Ranch and the Patruff Ranch before the reservation of the National Forest, the new roads formed after the reservation still fall under R.
Defendant's main argument is that he does not have to apply for an easement under ANILCA because easements by necessity or implied easements were created when the United States granted the land to Jenks' predecessors. Defendant also argues that he has a right of access to his lands under the Organic Act of June 4,now codified as 16 U.
See also Utah v. Utah valid existing rights of access cannot be taken under FLPMA but can be regulated since Congress has the constitutional authority and responsibility to manage federal land.
Defendant seems to concede that, to a certain extent, the Forest Service may restrict an inholder's use of an easement under FLPMA so long as such restrictions are lawful, reasonable, and do not infringe on the dominant estate owner's property rights. Defendant's response to plaintiff's motion for summary judgment at Defendant specifically argues, without citing any authority, that under the Organic Act, plaintiff may only regulate speed limits, traffic laws, and weight limits and that anything more is a violation of his property rights.
Defendant further argues that paragraphs B, C, D, I, J, and 6 of the FLPMA Easement deny defendant his property rights and thus, cannot be lawfully applied since these paragraphs 1 impose a fee; 2 make use of the easements conditional; 3 allow the Forest service to terminate the easements; and 4 make the transfer of the easements discretionary.
Contrary to defendant's contentions, I find that these regulations are reasonable and do not unlawfully infringe on defendant's property rights. See 43 U. Moreover, the power of the Secretary of Agriculture under the Organic Act to charge a reasonable fee has been specifically recognized. United States v. Hardin, F. Finally, defendant argues that plaintiff is estopped from denying defendant free, unrestricted access over the roads since even if plaintiff could regulate defendant's access rights, plaintiff has failed to do so thus far and cannot suddenly start now.
However, "the fact that The failure of an executive agency to act does not forfeit or surrender governmental property or rights. Weiss, F. See also United States v. See 56 F. PartSubpart D The regulations require the inholder to apply for an easement, 36 C. Montana Wilderness Asso. United States Forest Service, F. See 45 F. PartSubpart B Suffice to say that [R. It was not intended to grant rights, but instead to give legitimacy to an existing status otherwise indefensible.
That such is its purpose is clear. Road since there does not seem to have been any road leading to the Double J. Ranch which preexisted the Gila Forest Reserve. Nor shall anything herein prohibit any person from entering upon such national forests for all proper and lawful purposes, including that of prospecting, locating, and developing the mineral resources thereof. Such persons must comply with the rules and regulations covering such national forests.
The Act was passed in response to President Cleveland's February 22, decision to place approximately twenty million acres of public land in forest reserves.
Montana Wilderness Ass'n v. See 36 C. Jenks United States v. Jenks, F. United States District Court. New Mexico. June 18, The exercise of that right is, of course, not absolute.
Under the Constitution, Congress has the authority and responsibility to manage federal land. Congress has by statute delegated this authority to agencies such as the Forest Service, e.
Thus, although [the railroad company] must be allowed access to its property, the United States may regulate that access under statutes such as the Federal Land Policy and Management Act. Dunn, F. Justia Legal Resources. Find a Lawyer. Law Students. US Federal Law. US State Law. Other Databases. Legal Marketing.
Call our act at or use our inquiry form. Easements differ from estates in start in that they are nonpossessory interests. An easement does not give the alternative online dating sites flpma right of easement but rather a right to use something rights the possessory estate dating another. This presentation is meant to give a general overview of the law of easements, beginning with some definitions and moving on to explain the ways in which easements may be created and enforced. ORS An easement holder is a person with a legal right to use the easement and may include the owner of the land across which the easement passes. An easement, unless specified otherwise, creates an unlimited reasonable use of the servient estate. Verzeano v. CarpenterOr. The scope of an easement is not defined by its physical characteristics, but by its purpose, and it has been stated that.
Your request raises a number of legal issues as to which no court has ruled to date and as to which there are a range of colorable arguments. Is a final rule or regulation prohibited from taking effect by Section Is hereby granted. DOI took two major actions in relating to R. The [Department] is authorized to issue a document of disclaimer of interest or interests in any lands in any form suitable for recordation. Subject: Recognition of R.
Zavitz, William L. Lutz, U. Stewart, Festa. Robert M. Hall, Shows W. Johns, Ariz. The subjects of this tender heart dating site 2019 and dating are cross motions for late judgment filed on December 20, This suit night from defendant's refusal to comply with plaintiff's request that defendant "apply for and obtain a private road easement to document his right of access across lands within the National Forest System and to extinguish any claim of prior right which Jenks asserts. Jenks has refused to apply for a legal right of access to the three roads in question on the premise that he has a preexisting legal right of access over each of these roads.
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