ACQUIRING FEDERAL RIGHTS OF WAY THE FOREST SERVICE SPECIAL USE AUTHORIZATION PROCESS

• Jurisdiction: United States

Rights-of-Way How Right is Your Right-of-Way?
(May 1998)
CHAPTER 6B
ACQUIRING FEDERAL RIGHTS OF WAY THE FOREST SERVICE SPECIAL USE AUTHORIZATION PROCESS
Larry D. Gash ¹
United States Forest Service
Rocky Mountain Region
Golden, Colorado 80225

TABLE OF CONTENTS

SYNOPSIS

I. INTRODUCTION

II. AUTHORITIES

III. APPLICATIONS

IV. PROCESSING APPLICATIONS

V. TYPES OF AUTHORIZATIONS

VI. ISSUING OFFICIAL

VII. NATURE OF INTEREST

VIII. TERMS AND CONDITIONS

IX. RENTAL FEES

X. ADMINISTRATION OF AUTHORIZATIONS

XI. CONCLUSION

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740 Simms Street

P.O. Box 25127

Lakewood, Colorado 80225

(303) 275-5375

I. INTRODUCTION

Forest Service managers have a major role in managing linear right-of-way uses. They must ensure that adverse environmental impacts are minimized while providing for the very real and legitimate needs of the public, industry and other governmental agencies. At the same time, they are responsible for insuring that the proliferation of separate rights-of-way are held to a minimum. Most of the rights-of-way administered by the Forest Service are linear in nature or have a linear aspect to them such as a communication site which is actually a point location involving some linear arrangement of radio or microwave frequencies. Uses include oil and gas pipelines (energy related), electric transmission and distribution facilities, pipelines, conduits, and ditches (water or other non-energy related materials), roads, trails, railroads and tramways, telephone including fiber optic facilities and most recently cellular telephone uses.

The Forest Service uses a system of transportation and utility corridors, where available, for the location of these linear rights-of-way.² A transportation or utility corridor is defined as a linear strip of land identified for present or future location of transportation or utility rights-of-way within its boundaries.³ Corridors are usually not wider than 5 miles, and are limited by technological, environmental and topographical factors. They contain one or more utility, communication, or transportation facilities. Designation of corridors is a land use designation, identified for the purpose of establishing policy direction as to the preferred location of compatible linear facilities. The policy direction addresses other land uses which are compatible with corridor uses. A corridor designation does not imply entitlement of use. Appropriate environmental review and regulatory permitting must precede occupancy on a project specific basis.

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II. AUTHORITIES

The Forest Service has the authority to issue authorizations for linear rights-of-way under several authorities.⁴ The authority used to issue authorizations for energy related pipelines is Section 28 (the Oil and Gas Pipeline Amendment) of the Mineral Leasing Act of 1920 enacted in 1973.⁵ Easements issued to all non-Federal applicants, for oil and gas pipelines are issued under the Mineral Leasing Act. If an oil and gas pipeline crosses separate parcels of land administered by more than one Federal Agency, the Secretary of Interior issues the easement across all Federal ownerships.

Oil and gas pipelines for Federal agency applicants, admittedly a rare occurrence, are authorized under Section 507 of the Federal Land Policy and Management Act of 1976 where the pipeline crosses Forest Service or BLM Lands.

The most comprehensive authority is the Federal Land Policy and Management Act of 1976 (FLPMA).⁶ This is one of the same authorities used by the Bureau of Land Management in issuing rights-of-way. The authority to issue these authorizations is contained in Title V.

The authority to issue easements for public roads to state, county or local governments is the National Forest Roads and Trails Act of 1964 (FRTA).⁷ FRTA also contains authority to grant or exchange easements for joint road systems needed by the Forest Service and large commercial land holders such as logging companies. While there is authority to use FRTA for joint road systems across the nation, several areas of the United States do not use that authority except to issue easements for public roads. The Rocky Mountain Region is one of the areas which does not use FRTA for joint road systems.

Another statute which has a bearing on access to private land surrounded by National Forest System (NFS) lands is Section 1323 of the Alaska National Interest Lands Conservation Act of 1980 (ANILCA).⁸ Although the Act was enacted to address issues related to Alaska, Section 1323 affects lands within the lower 48 states. This section provides a statutory right of access to private lands situated within the National Forests. Such lands must be completely surrounded by NFS lands and the right of access is subject to imposition of conditions by the Secretary of Agriculture. This section of the statute also applies to the Public Lands administered by the Secretary of Interior through the BLM. Authorizations issued pursuant to ANILCA are issued under the authority granted by FLPMA.

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III. APPLICATIONS

In order to be granted an authorization by the Forest Service for any use of the National Forest, an application must be filed and processed by the Forest Service.⁹ As a general premise, a proponent is encouraged to have what is termed a preapplication meeting with the Forest Service representative. The proponent should be prepared to discuss what the application encompasses and why National Forest System lands are needed to be encumbered. Matters discussed with the proponent by the Forest Service include appropriateness of the use of NFS lands, possible land use conflicts as identified by review of land management plans, landownership records, and other readily available information sources. The Forest Service will discuss application procedures and probable time requirements, applicant qualifications, fees, charges, bonding and security requirements, necessary associated clearances, permits and licenses, environmental and management considerations, special conditions and identification of on-the-ground investigations required in conjunction with the application and for which temporary use permits will be required.

Following the preapplication meeting, the proponent should fill out Forest Service Form 2700-3 Application For Special Use Permit.¹⁰ This is a three-part form. The applicant should fill out part I, Application and Part II, Supplemental Information. Part II asks for specific corporate or partnership information when the applicant is other than an individual. The form is available from any Forest Service office or is available on the internet at hppt://fsweb.wo.fs.fed.us/.

The applicant should be as thorough as possible in answering the questions posed on the form. Attach any Exhibits or other information and submit the form to the respective District Ranger.¹¹ Applications for projects on lands under the jurisdiction of two or more administrative units of the Forest Service may be filed at the most convenient Forest Service office having jurisdiction over part of the project and the applicant will be notified where subsequent communications should be directed.¹² Applications for oil and gas pipeline rights-of-way under the jurisdiction of two or more Federal agencies have to be filed with the State office of the Bureau of Land Management.¹³

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Identification of the applicant has to be sufficient so that the Government will know the true identity of the entity and/or individuals applying.¹⁴ The applicant should be prepared to present sufficient information to allow the Forest Service to determine the technical and financial capability of the applicant to construct, operate, maintain and terminate the project for which the application is requested.¹⁵

The description of the project and associated activities needs to be sufficient for the Forest Service to determine the feasibility of the project.¹⁶ Enough information needs to be supplied to allow the Forest Service to determine the impacts of the project on the environment. Any public benefit should be highlighted and enough information to determine that the project is safe should be stated. An accurate description of the location of the project needs to be furnished. This usually depends on the complexity of the project. Sometimes a full centerline survey will be required and sometimes noting a location on a good map will suffice. The applicant should discuss such needs with the Forest Service representative.

After receipt of the application, the Forest Service may determine that more information is necessary in order to make a decision on allowing the project. The Forest Service will endeavor to ask only for a reasonable level of information necessary to make a decision.¹⁷

IV. PROCESSING APPLICATIONS

The Forest Service will acknowledge receipt of the application in writing.¹⁸ The qualifications of the applicant will be assessed.¹⁹ Any individual, corporation, association, municipality, or agency of local or State government is eligible for consideration for a special use authorization. No member of the...