Federal Land Transfer and Land Uses on National Forests Highway Right of Ways … A common Goal Federal Land Transfer Federal/Federal agency action under Title 23, U.S.C. – Part 317 regulation No formal Forest Service Decision Memo or additional NEPA required for transfer Process used to acquire permanent ROW The Forest Service does not accept the use of Title 23, U.S.C. to authorize temporary ROWs, construction easements or short-term land uses. National MOU National Forest Service-FHWA MOU sets protocols for implementation of land transfer process. Use it as a reference. MEMORANDUM OF UNDERSTANDING BETWEEN UNITED STATES DEPARTMENT OF AGRICULTURE Forest Service and UNITED STATES DEPARTMENT OF TRANSPORTATION Federal Highway Administration Regarding the Appropriation and Transfer of National Forest System Lands for Highway Purposes Highway Easement Deed Trivia Purpose: Construct, operate and maintain the transportation facility on NFS lands. FHWA issues the easement on behalf of the federal government, not the Forest Service. Instrument is termed a “USDOT easement.” State DOT holds easement on federal and state highways. Easement Deed Deed easement. Forest Service has ten conditions that are always included in the deed easement language. EASEMENT 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. 23 U.S.C. – Part 317 (a) a) If the Secretary determines that any part of the lands or interests in lands owned by the United States is reasonably necessary for the right-of-way of any highway, or as a source of materials for the construction or maintenance of any such highway adjacent to such lands or interests in lands, the Secretary shall file with the Secretary of the Department supervising the administration of such lands or interests in lands a map showing the portion of such lands or interests in lands which it is desired to appropriate. 23 USC 317 (b) b) If within a period of four months after such filing, the Secretary of such Department shall not have certified to the Secretary that the proposed appropriation of such land or material is contrary to the public interest or inconsistent with the purposes for which such land or materials have been reserved, or shall have agreed to the appropriation and transfer under conditions which he deems necessary for the adequate protection and utilization of the reserve, then such land and materials may be appropriated and transferred to the State transportation department, or its nominee, for such purposes and subject to the conditions so specified. 23 USC 317 (c) (d) (c) If at any time the need for any such lands or materials for such purposes shall no longer exist, notice of the fact shall be given by the State transportation department to the Secretary and such lands or materials shall immediately revert to the control of the Secretary of the Department from which they had been appropriated. (d) The provisions of this section shall apply only to projects constructed on a Federal-aid system or under the provisions of chapter 2 of this title. Letter of Consent = Authorization Letter of Consent authorizes FHWA/DOT to enter on, construct, operate and maintain transportation facility on National Forest System lands within approved ROW. Easement deed recording follows construction. Forest Service must respond to application for LOC. Failure results in appropriation of land for ROW w/o Stipulations. Forest Service consent to the appropriation of NFS lands for transportation right-of-way purposes is conditioned on the following factors: – Project is in public interest – Consistent with land reservation (Forest Mgmt Plan). – Provide Stipulations necessary for adequate protection/use. Letter of Consent - Stipulations Ten national stipulations. Additional stipulations may be added locally depending on issues/concerns associated with the project. STANDARD STIPULATIONS The 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 Montana, Idaho (north Regional Forester Terry Eganhoff (Northern) of Salmon R) (406) 329-3601 North Dakota 2 Colorado, Nebraska Regional Forester Deb Ryon (Rocky Mountain) South Dakota, (303) 275-5376 Wyoming (east of continental divide) 3 Arizona, Forest Supervisor Bob Suedkamp (Southwestern) New Mexico (505) 842-3445 4 Wyoming (Bridger- Forest Supervisor John Shochat (Intermountain) Teton NF), Nevada, (801) 625-5688 Utah, California (Toiyabe NF), Idaho (south of Salmon R) 5 California, Hawaii Regional Forester Nancy Fleenor (Pacific Southwest) (707) 562-8971 6 Oregon, Washington Regional Forester Jim Davis (Pacific Northwest) (503) 808-3045 10 Alaska Regional Forester Roger Birk (Alaska) (907) 586-8843 Corridor Letter of Consent Optional – can be used on long-term, multi- section „corridor‟ type transportation projects. Consent includes the proposed permanent ROW and the use of contiguous lands needed for construction (temporary areas). Corridor areas are temporary and must be included in the project NEPA and clearances. Corridor Letter of Consent - Example Corridor Letter of Consent - Example Easement Deeds – Facts & Fiction What is conveyed with ROW easement deed? - Use of national forest system lands for construction, operation and maintenance of transportation facilities. - Mineral materials are available “free” to DOT for public transportation projects, located inside or outside of the national forest, subject to the discretion of the Line Officer. Mineral material permit required outside ROW. What is not conveyed with ROW easement deed? - Fee title - Federal minerals - Merchantable timber - Non-transportation uses (safe & incompatible with ROW) Temporary Land Uses Short and long-term land use authorizations outside the ROW (maintenance facilities, material stockpiling, gravel sources, wetland mitigation sites, plant sites, etc.) normally require a Special Use Permit. Forest Service is lead agency for permit, NEPA and Decision. Include temporary use areas within transportation project footprint (NEPA) if possible. Working with the Forest Service Involve the Forest Service early in the ROW process. Build a relationship. Many Forest Service staff have limited knowledge & experience with the Federal Land Transfer process. Help Forest Service staff to understand the process and their roles and responsibilities. Transportation projects are just one of many programs & workload commitments within the Forest Service. They are often viewed as an unfunded mandate. Be patient & get in line.