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FOREST SERVICE HANDBOOK
Denver, CO
TITLE 5409.17 - RIGHTS OF WAY ACQUISITION
R2 Supplement No. 5409.17-93-1
Effective March 31, 1993
POSTING NOTICE. This supplement is the first R2 Supplement to FSH 5409.17.
You do not need to check for last transmittal received for this title. Place this
document in full at the end of the white pages for Chapter 10.
Document Name
5409.17_10
New Pages
10
Digest:
Changes numbering and titling to conform with the white pages and moves and
updates material formerly contained in the R-2 Rights-of-way Working Tool which
is hereby superseded.
ELIZABETH ESTILL
Regional Forester
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TITLE 5409.17 - RIGHTS OF WAY ACQUISITION
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CHAPTER 10 - ACQUISITION PROCEDURES AND DOCUMENTS
11 - FORMS OF EASEMENT CONVEYANCE.
11.1 - Easements for Existing Roads or Roads to be Constructed. Prescribed
easement deeds for use in Region 2 are in FSH 5409.17, sec. 11.1 and 11.2, R-2
Supp. No. 1, 10/87. The Right-of-way Working Tool established in 1979 is
eliminated and the draft deeds and examples of other documents from that Right-ofway Working Tool needed for processing Rights-of-way Acquisitions have been
incorporated into FSH 5409.17.
A deed preparer need only select the appropriate granting, description, reservation,
etc., clauses and have them typed to make up a deed. All clauses have been
reviewed and approved for use by the Regional Attorney.
Plat descriptions for deeds are more satisfactory than written descriptions.
However, some title companies are requiring written descriptions. The Forest
should be prepared to furnish written descriptions where needed. Where a plat is
used, a notation on each plat shall reference it back to the written deed by stating
the grant is from a landowner (name) to the United States for a specific road (name
and number). The Forest Engineer shall sign all plats indicating his/her approval
as to acceptability of the description and all other included information.
12 - PREPARATION AND CONTENTS OF EASEMENTS.
12.7 - Other Formats. The following formats should be used for all grants of rightsof-way acquired across state lands administered by the State Board of Land
Commissioners within Colorado (ex. 01) and Wyoming (ex. 02).
Other States within Region 2 will have their own formats. As they become
available, these will be incorporated into FSH.
12.71 - State Board of Land Commissioners, Colorado, Easement Format. Use the
following format for easements granted by the State Board of Land Commissioners
in Colorado.
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12.7 - Exhibit 01
Document Number _________
FOREST SERVICE RIGHT-OF-WAY AGREEMENT
No. _______, Book _________
THIS INDENTURE, MADE THIS _______ day of _________ 19_____, between
the STATE OF COLORADO, acting by and through the STATE BOARD OF LAND
COMMISSIONERS ("State Board") and the UNITED STATES OF AMERICA,
acting by and through the FOREST SERVICE, UNITED STATES DEPARTMENT
OF AGRICULTURE ("Forest Service"):
WHEREAS, the Forest Service has made application to the State Board for a
right-of-way upon, and across the surface of the hereinafter described land for the
purpose of constructing, reconstructing, operating and maintaining a road for fire
control, timber operations, grazing administration, and possible access for public
recreation, and
WHEREAS, State Board has in manner and form as provided by statute,
granted such right-of-way for the purpose aforesaid and none other, upon terms and
conditions set forth herein, and has duly authorized the proper officers to execute
this indenture.
NOW, THEREFORE, in consideration of the sum of
Dollars ($
)
State Board grants the Forest Service its successors and assigns, a right-of-way
upon, and across the surface of those certain portions of school lands described as
follows:
(WRITTEN DESCRIPTION)
1. This grant is made with the understanding that the Forest Service must
commence construction of said roadway in accordance with this grant within five (5)
years from date hereof, failing in which this grant shall be subject to cancellation at
the option of the State Board.
2. The State Board hereby reserves all rights to any and all minerals, ores, and
metals of any kind and character, and all coal, asphaltum, oil, gas, geothermal
resources or other like substances in or under the subject land, the right of ingress
and egress for the purpose of mining, together with enough of the surface of same as
may be necessary for the proper and convenient working of such minerals and
substances.
3. This grant of right-of-way is made subject to any and all leases and rightsof-way heretofore legally obtained and now in full force and effect, if any there be.
Any future exercise of said rights shall be in a manner which will not interfere with
the purpose for which this right-of-way was granted.
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4. The State Board shall have the right at any and all times during the
continuance of this right-of-way to sell or otherwise dispose of said land subject to
this right-of-way, and to use the same for all purposes, except as necessarily limited
by the road described above.
5. The right-of-way is made for the sole and only purpose as herein set forth,
and no other; and in the event that the Forest Service its successors and assigns,
shall at any time use or attempt to use the same for any other purpose whatsoever,
then and in that case this right-of-way shall become void and of no effect, and any
and all such rights and privileges herein granted shall revert to the State Board.
The Forest Service will be notified in writing and shall be given an opportunity to
rectify any reported violation within sixty (60) days of receipt of such notice, unless
otherwise agreed to in writing.
6. This right-of-way shall not be fenced. The Forest Service agrees to install
such drainage ditches or water bars which in its judgement are necessary to prevent
excessive erosion.
7. The Forest Service shall have the right to construct and maintain only the
road above described and shall have the right to trim trees and shrubbery only if
such trees or shrubbery should materially interfere with or endanger the proper
operation and maintenance of said road.
8. This right-of-way does not grant permission, express or implied, to the
Forest Service for water exploration, drilling, or establishing water wells, without
written permission of the State Board which permission shall not be unreasonable
withheld. If the Forest Service desires to establish or adjudicate any water right for
beneficial use on the subject land, any adjudications or applications shall be in the
name of the State board. The same shall apply to any non-tributary water rights
established on the subject land which may be put to beneficial use of said land.
9. The road to be constructed and maintained upon this right-of-way is for
long-term management and resource utilization needs of National Forest system
lands and no restriction of any kind may be placed upon this use unless prior
consent to such restriction is obtained from the Forest Service. At the discretion of
the Forest Service, commercial users of the road built on this right-of-way will be
required to pay the Forest Service their pro-rata share of the needed maintenance
or reconstruction costs of the facilities used.
10. The Forest Service shall have such right of ingress and egress as may be
necessary for the construction, reconstruction, operation and maintenance and
removal of said road, but shall not leave open, or permit to be left open, any fences,
bars or gates. All such fences, bars or gates which may be damaged or disturbed in
any way shall be fully restored by the Forest Service.
11. In the event that the facility or facilities for which this right-of-way is
granted are to be enlarged, replaced, relocated, or added to in the future, the Forest
Service shall advise the State Board of such change and furnish surveys, plats and
descriptions of the change to the State Board. An additional consideration,
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commensurate with the damage to the value of the State land, may be required, as
determined by the State Board.
12. The right-of way herein granted shall continue for as long as the road
described above is used and maintained by the Forest Service, provided that should
said road be abandoned or discontinued for a period of twenty-four (24) consecutive
months, this right-of-way and all rights of the Forest Service hereunder shall
terminate at the end of such twenty-four (24) month period. In the event of any
action to terminate, the Regional Forester will be notified in writing and given
thirty (30) days to submit comments concerning such termination. Upon
termination the State Board may require the Forest Service to restore the land
occupied by said right-of-way as nearly as possible to their condition prior to the
construction of the road.
13. The Forest Service agrees to assume all liability as far as it legally may
arising from its exercise of the right-of-way herein granted; including but not
limited to, the risk of all injuries, including death resulting therefrom, to persons,
and damage to and destruction of property including loss of use thereof, resulting
directly or indirectly, wholly or in part, from the prosecution or omission of any
work or obligation undertaken or required by this Agreement.
14. The Forest Service will pay to the State Board the full amount necessary to
compensate the State Board for damages to its property, rights, franchises, or
privileges, including legal liabilities and damage to crops of lessees, resulting from
acts or omissions of the Forest Service, its agents or employees.
15. Nothing in this indenture and easement shall be construed as obligating
the Forest Service to expend, or as involving the Forest Service in any obligation
for, the payment of money in excess of appropriations unauthorized by law.
16. In the event of condemnation by the United States of the land subject to
this easement, the interest of the State Board in such land shall be determined by
the title examination or other suitable method. All fair and just compensation for
the interest of the State Board in such land shall be paid to the State Board. In the
event that such condemnation is not made subject to the right-of-way granted
herein, the State Board shall refund to the Forest Service the consideration paid for
this agreement as set forth above; provided however, that the refund shall not be
greater than the appraised value of the right-of-way in the award.
If a specific and separate award for improvements on the right-of-way is
granted by the condemnor, such specific and separate award shall be deemed to be
the property of the Forest Service.
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The State Board and Forest Service have executed this Indenture on the day
first written above.
STATE OF COLORADO
BOARD OF LAND COMMISSIONERS
President
Register
Engineer
ACCEPTED BY:
UNITED STATES OF AMERICA,
acting by and through the
FOREST SERVICE,
UNITED STATES DEPARTMENT OF
AGRICULTURE
BY:
DEPUTY REGIONAL FORESTER
DATE:
12.72 - State Board of Land Commissioners, Wyoming, Easement Format. Use the
following format for easements granted by the State Board of Land Commissioners
in Wyoming.
No.
Road
12.7 - Exhibit 02
STATE OF WYOMING
GRANT OF EASEMENT FOR
Roadway
TO
United States of America
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KNOW ALL MEN BY THESE PRESENTS, That the Board of Land
Commissioners of the State of Wyoming, acting within the authority vested in it by
and under the Constitution and laws of the State of Wyoming, does, for and in
consideration of the payment of Two thousand fifty-one and 00/100 dollars
($2,051.00) grant to United States of America for the uses and purposes and upon
the conditions hereinafter set forth, an easement for road purposes in perpetuity
over a certain tract of land situated in the County of Park, State of Wyoming, more
particularly described as follows:
Pickett Creek Road No. 209
All that portion of Lot 46(formerly Section 36), Resurvey T.49N., R.103W., of the 6th
P.M., Park County, Wyoming, lying between parallel right of way lines 60 feet
apart, being 30 feet on each side when measured at right angles to the following
described survey line, said parallel right of way lines begin on the south boundary of
said Lot 46 and end on the west boundary of said Lot 46:
(Written description)
The above described parcel of land contains
acres, more or less.
This description is based on a survey done under the authority of J. Harvey
Copeland, Wyoming L.S. No 2451, in July of 1985.
The above described tract being more specifically shown upon a map in the State
Land Office, filed with and made a part of an application for right of way.
TO HAVE AND TO HOLD for continuous use said easement over the above
described land for the use and benefit to locate, construct, control, maintain,
improve, relocate, and repair a road within the designated right of way.
PROVIDED, That the easement granted hereby shall never be used so as to
interfere with or impair the full development of the land embraced therein for its
minerals or coal, or interfere with or impair the full or complete extraction
therefrom by the State of Wyoming or its legal grantees or lessees of all minerals or
coal contained in said land, including oil and gas.
PROVIDED FURTHER, That the easement granted hereby shall not be used to
the detriment or injury of the grazing or agricultural lessees or purchases of said
land from the State of Wyoming, or their livestock or property, or so as to interfere
with their use and enjoyment of the surface embraced in the easement for grazing
purposes or the cultivation of crops.
PROVIDED FURTHER, That upon the abandonment or discontinuance of the
use of said tract of land for said purpose for which granted, the rights of said
grantee to the use of said land and easement shall terminate and cease, and all
rights and interest vested in said grantee by this grant of easement shall revert to
the State of Wyoming, its successors and assigns, the same as if this grant had
never been made. Should land be abandoned by grantee, said land will be returned
to a condition satisfactory to the landowner.
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IN TESTIMONY WHEREOF, The Board of Land Commissioners has caused this
instrument to be signed by its President and countersigned by its Secretary, and its
seal to be hereunto affixed the
day of
A.D. 19 .
Mike Sullivan, Governor,
President Board of Land Commissioners
SEAL
Countersigned:
Howard M. Schrinar, Director
State Land and Farm Loan Office
Examined
13 - DEED EXECUTION, CERTIFICATION, AND RECORDING.
13.1 - Execution.
2. Signatures. Wyoming, Nebraska and South Dakota statutes require that
both husband and wife execute easement deeds even though only one is the
landowner of record. This is not mandatory in Colorado or Kansas, but is generally
required by the Regional Attorney. All parties to a partnership must execute a
granting instrument, unless a specific individual is legally authorized to sign for all
or specified partners. When lands are in estate status, held in trust, etc., the
relevant facts regarding authority to act for the entity should be forwarded to the
Regional Office with a request for instructions as to how the deed should be
executed.
Where deeds are signed with a name different than that shown as the grantor, the
discrepancy may be corrected by an affidavit if the names and initials correspond.
If names and initials do not correspond, a new deed must be executed.
4. Acknowledgment. The acknowledgment must be in the form shown in FSH
5409.17, sec. 12--29, R-2 Supp. No. 2, 1/88. These formats should be used unless a
legally authorized notary has a prepared form which is notarized and attached to
the deed. The State and county shown in the acknowledgment are those where the
acknowledgment form is executed.
The State, County, name of grantor and other known information should be typed
or written in the acknowledgment, when prepared.
14 - NEGOTIATIONS.
14.4 - Offers and Counteroffers. Use the format in Exhibits 3, 4, and 5 when
needed to comply with direction in FSM 5409.17, sec. 14.3--1 through 14.3--5.
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Exhibit 03
(Offer In Settlement - Suggested Format)
United States
Department of
Agriculture
Forest
Service
Rocky Mountain
Region
File Code:
11177 W. 8th Avenue
Box 25127
Lakewood, CO 80225-0127
5460
Date:
*Start address
Dear *
I have considered your counter offer of *[$14,000] for the right-of-way for the *[Soap
Creek] Road. I feel this is too much to pay for an easement interest for a road on
one acre of your property. To pay this amount would not be in the public interest.
(YOU CAN SPECIFY OR NOT SPECIFY REASONS DEPENDING ON THE
SITUATION.)
However, I hereby make a counter offer of *[$12,100] as an offer-in-settlement for
the purchase of the right-of-way. This amount was given to you by *[Mr. Pat
Hickey by phone on August 28, 1990]. If acceptable, *(PLEASE CONTACT PAT
HICKEY TO SET A DATE AND TIME TO EXECUTE THE EASEMENT DEED.)
(OR YOU MAY WANT TO EXPLAIN THE PROCESS FOR FINALIZING THE
EASEMENT, OBTAINING PRELIMINARY TITLE, MAKING PAYMENT, ETC.)
Sincerely,
Forest Supervisor
NOTE: Put on Forest Letterhead.
* Fill in the information pertinent to your case.
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Exhibit 04
(Offer In Settlement - Suggested Format)
United States
Department of
Agriculture
Forest
Service
Rocky Mountain
Region
File Code:
Date:
11177 W. 8th Avenue
Box 25127
Lakewood, CO 80225-0127
5460
CERTIFIED MAIL - RETURN RECEIPT REQUESTED
*Start address
Dear *
In your letter of August 28, 1990 you indicated that you were unwilling to convey an
unlimited right-of-way over your property in Section 31, Township 104 North,
Range 2 West, New Mexico Principal Meridian in San Juan County, Colorado
(based on our last offer of $________).
We have confirmed our management needs for the National Forest System lands
adjacent to your property and several alternatives for gaining access. Our analysis
indicates that the route through your land is the most feasible, economical and
environmentally preferred route, and acquisition of an easement across your land is
clearly in the public interest. (Enclosed is our Decision Memo regarding acquisition
of the right-of-way.)
We are making a final offer of $_________ in an effort to acquire the right-of-way.
We believe this to be a fair offer and hope that you will consider and accept it.
We would certainly like your cooperation in this matter and look forward to hearing
from you no later than (date). Please contact Mr. Pat Hickey if you would like to
discuss the matter further.
Sincerely,
Forest Supervisor
NOTE: Put on Forest Letterhead.
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Exhibit 05
(Offer In Settlement - Suggested Format)
United States
Department of
Agriculture
Forest
Service
Rocky Mountain
Region
File Code:
Date:
11177 W. 8th Avenue
Box 25127
Lakewood, CO 80225-0127
5460
CERTIFIED MAIL - RETURN RECEIPT REQUESTED
*Start address
Dear *
In your letter of *[August 28, 1990] you indicated that you were unwilling to convey
an unlimited right-of-way over your property in Section 31, Township 104 North,
Range 2 West, New Mexico Principal Meridian in San Juan County, Colorado
(based on our last offer of *[$14,000].)
We have confirmed our management needs for the National Forest System lands
adjacent to your property and several alternatives for gaining access. Our analysis
indicates that the route through your land is the most feasible, economical and
environmentally preferred route, and acquisition of an easement across your land is
clearly in the public interest. (Enclosed is our Decision Memo regarding acquisition
of the right-of-way.)
We are making a final offer of *[$18,900] in an effort to acquire the right-of-way.
We believe this to be a fair offer and hope that you will consider and accept it.
If we cannot reach agreement, we will recommend the use of court proceedings to
condemn the right-of-way. We are required to deposit with the court an amount
equal to that established as Just Compensation by the agency approved appraisal
and not what was previously Offered in Settlement or is now being Offered in
Settlement Under Threat of Condemnation. In this case, the amount established as
Just Compensation is *[$9,600]. Landowners risk receiving an award of less than
the Agency's Offer in Settlement or Offer in Settlement Under Threat of
Condemnation. Landowners may also incur noncompensable expenses associated
with attorney and expert witness fees.
We would appreciate your cooperation in this matter and look forward to hearing
from you no later than *[September 5, 1990]. Please contact *[Mr. Pat Hickey] if
you would like to discuss the matter further.
Sincerely,
Forest Supervisor
NOTE: Put on Forest Letterhead.
* Fill in pertinent information pertaining to your case.