R6 SUPPLEMENT 1
EFFECTIVE 02/87
2709.12, 21.23-25.3
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FSH 2709.12 RIGHTS-OF-WAY GRANTS HANDBOOK
2/87 R6 SUPPLEMENT 1
CHAPTER 20 - DEPARTMENT OF TRANSPORTATION EASEMENTS
21.3 - Procedure for Issuance. A uniform right-of-way width may be appropriate in
gentle terrain or where competing land values are not apparent. It may not be
appropriate in mountainous terrain and through lands with high recreation values,
particularly where the highway parallels a stream or lakeshore.
In some instances, National Forest land needed for State highway right-of-way
purposes may be encumbered by a special-use permit. The Forest Service will
consider action to amend or terminate special-use permits when advised in writing
by the Federal Highway Administration (FHWA), State Highway Department, that
the National Forest land is needed for a Federally financed project. Requests for
investigation of permits in conflict with highway needs should be made by the State
or FHWA to the Forest Supervisor. Results of this investigation and the Forest
Supervisor recommendations shall be sent to the Regional Forester for
consideration and action.
Annual permits are revokable at the discretion of the Regional Forester. There is
no provision for reimbursement to the permittee for improvements authorized by a
terminable permit (FSM 2716.4).
Term permits can be terminated or amended prior to expiration by mutual consent.
Revocation by the Forest Service without the consent of the permittee requires
reimbursement to the permittee for the unamortized balance of the permittee's
investment. Such reimbursement will normally be the responsibility of the State or
FHWA.
If a term permit is in conflict with a State highway project, the Regional Forester
will give written notification to the State or FHWA that part of the proposed rightof-way is subject to the conditions of the term special-use permit. As a condition or
stipulation to a consent of the appropriation of National Forest land under permit
for the highway, the State shall obtain a release executed to the United States of all
its obligations and liabilities under the conditions stated in the permit.
Termination of the permit can then be accomplished by mutual agreement with the
permittee.
If the permittee's improvements will not conflict or interfere with highway
construction and do not need to be destroyed or removed from the right-of-way, the
Department of Transportation easement can be granted subject to the permittee's
rights for the remaining period of the permit. The State must concur in this type of
exception.
R6 SUPPLEMENT 1
EFFECTIVE 02/87
2709.12, 21.23-25.3
Page 2 of 2
22.12 - State Operates and Maintains Existing Highway. Much Forest highway in
R-6 has been assumed by the two States without any formal transfer of rights-ofway to the States by permit or easement. At the time of informal transfer, USDA
Reg. U-14 indicated that the minimum overall width of right-of-way could be
construed to be 132 feet. As stated in FSH 2709.12, section 34.2, U-14 is now
revoked and, as has been substantiated by the two States in Memorandums of
Understanding, the current clearing limits establish the limits of authority of the
highway departments.
The same revision applies to special-use permits previously issued for Interstate
and other State highways. The rights-of-way plats attached to the permits for those
projects usually show an access control boundary some fixed distance from, and
parallel to, the highway centerline. These limited access boundaries were often set
without the benefit of environmental analysis. Because of this, conflicts are
occurring in the use of the area between the construction limits and the access
control boundary. When this situation arises and cannot be resolved at Forest level,
the case should be sent to the Regional Forester for review and counsel.