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FOREST SERVICE MANUAL
EASTERN REGION – R9
MILWAUKEE, WI
FSM 1000 – ORGANIZATION AND MANAGEMENT
CHAPTER 10 – LAWS, REGULATIONS AND ORDERS
Supplement No.: 1000-2001-1
Effective Date: September 7, 2001
Duration: Effective until superseded or removed
Approved: DAVID S. DILLARD
Acting Deputy Regional Forester
Date Approved: 09/7/2001
Posting Instructions: Supplements are numbered consecutively by Title and calendar year.
Post by document name. Remove entire document and replace with this supplement. Retain this
transmittal as the first page of this document.
New Document(s):
1000-2001-1
22 Pages
Superseded Document(s):
1000-91-1
21 Pages
(
Digest: Insert digest information here
10
Reissues supplement in MSWord Format. Also removes section
1013.04f and 1030.2 as they contained outdated information.
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1012 - STATE AND LOCAL LAWS
1. Consent to Acquire Lands
a. Illinois
4052. Repealed by Laws 1939, p. 1167, Sec. 1, eff. July 13, 1939
Historical Note
The repealed paragraph which exempted from taxation the property acquired by the United
States under 4051 of this chapter, was derived from Laws 1929, p. 777, Sec. 2.
Saving clause. See Historical Note under repealed 4151, 4152 of this chapter.
National Forests-Acquisition of Land
4101. Consent for acquisition of land--Service of process
Consent of the State of Illinois is given to the United States for the acquisition by purchasse, gift,
or condemnation with adequate compensation, of such lands as in the opinion of the Federal
Government may be needed for the establishment, consolidation and extension of National
Forests in the State. The State retains concurrent jurisdiction with the United States over such
areas in the matter of the service thereon of all civil and criminal process issuing under the
authority of the State of Illinois.
Laws 1931, p. 910, Sec. 1, eff. July 1, 1931.
Historical Note
Title of Act: An Act in relation to the acquisition of lands in the State of Illinois by the United
States for establishing, consolidating and extending National Forests. Laws 1931, p. 910,
approved June 18, 1931, eff. July 1, 1931.
Notes of Decisions
In general. Private landowners in Illinois could not challenge power of United States to
condemn land in Illinois on ground of want of consent by the state. U.S. v. Eighty Acres of Land
in Williamson County, D.C. 1939, 26 F. Supp. 315.
4102. Repealed by Laws 1939, p. 1167, Sec. 1, eff. July 13, 1939.
The repealed paragraph, which exempted from taxation the property acquired by the United
States under 4101 of this chapter, was derived from Laws 1931, p. 910, Sec. 2.
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b. Indiana
Burns Indiana Statutes, Annotated
4-21-7-1 [62-1019]. Consent given to acquisition of forestland by United States - Termination
date.
(1) Subject to the conditions established in this chapter, the consent is given the
United States of America to acquire, by purchase or gift, such lands as in the opinion
of the Federal Government may be needed for establishment, consolidation, or
extension of National Forests in the State.
(2) The consent given in subsection (a) terminates January 1, 2021. [Acts 1935, ch.
29, Sec. 1; 1978, P.L. 2, Sec. 414; 1980, P.L. 18, Sec. 1l]
4-21-7-2.1. Conditions for consent. The consent given in section 1 [4-21-7-1] of this
chapter is subject to the following conditions:
(a) That the United States of America does not exercise its power of eminent domain,
directly or indirectly, for the acquisition of such property, except to clear title;
(b) That the United States of America assumes the duties of a private landowner in
Indiana regarding the owners or persons in legal possession of property adjoining
National Forest land in Indiana;
(c) That before January 1, 1981, the Federal Government defines National Forest
purchase boundaries within the State establishing purchase areas that enclose an
aggregate of not more than four hundred thirty thousand [430,000] acres; however,
the governor may grant a one [1] year extension of the time limitations, if in his
judgment it is to the advantage of the people of Indiana;
(d) That the United States acquires not more that two hundred forty thousand
[240,000] acres for National Forest land in this State;
(e) That the United States acquires by purchase not more than twenty-five percent
[25%] of the area of any county; and
(f) That the United States does not use any portion of the land within the National
Forest for the disposition, storage, or handling of nuclear or nonnuclear hazardous
waste, including but not limited to nuclear material, radioactive material, and the
radioactive remains of a nuclear facility. [IC 4-21-7-2.1 as added by Acts 1980, P.L.
18, Sec. 2.]
4-21-7-3. Termination of consent by operations of law. In the event the United States of
America fails to conform to any of the conditions provided in section 2 [4-21-7-2.1] of this
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chapter, the consent given in section 1 [4-21-7-1] of this chapter is terminated forthwith, by
operation of law. [IC 4-21-7-3, as added by Acts 1980, P.L. 18, Sec. 3]
4-21-7-4. Concurrent jurisdictions. The State retains concurrent jurisdiction with the United
States in and over lands acquired by the United States under this chapter, so far that civil process
in all cases and such criminal process as may issue under the authority of the State against any
person charged with the commission of any offense may be executed thereon. [IC 4-21-7-4, as
added by Acts 1980, P.O. 18, Sec. 4.]
4-21-8-1 [62-1021]. Consent to acquisition of land. The consent is hereby given to the
acquisition by the United States of America by purchase, gift, or condemnation with adequate
compensation such lands as the United States of America may desire to purchase and acquire,
pursuant to any act of congress for the acquisition, establishment, maintenance, and development
of fish hatcheries, wildlife preserves, forest preserves, or for agricultural, recreational, or
experimental uses. [Acts 1937, ch 52, Sec. 1, p. 291.]
4-19-3-1 [62-1028]. Exchange of State and Federal lands. The members of the Indiana
Department of Conservation [Department of Natural Resources], with the approval and consent
of the governor, are authorized to enter into contracts with the United States government, or the
proper department or agency thereof authorized by an act of congress, for the conveyance of
State lands under the supervision and control of the Indiana Department of Conservation
[Department of Natural Resources] for lands of the United States of the same general character
and of substantially the same value when in their judgment the State lands to be conveyed to the
United States government are not vital to the flood control, forest, wildlife, park, and/or soil
conservation program of this State and when such exchange is advantageous to the State for the
orderly development and management of the conservation program, and to this end they may
accept or pay out of available funds such cash difference as will affect an equitable exchange of
lands, and they are authorized to execute proper conveyances to the effect any such exchange;
provided however, that nothing herein shall authorize the violation of any contract to which the
State is a party or the terms or conditions of any gift or devise under which the State has
accepted the title to lands. [Acts 1949, ch. 209, Sec. 1.]
NOTE: While the Forest Service will normally comply with the intent of the most current
enabling legislation, it is OGC's opinion that:
Once a State has given its consent to a Federal program (as was done by the State of Indiana in
1935) and an acquisition program established, it may not legally revoke its consent at will, nor
impose additional conditions that substantially interfere with the Federal program. A State
subsequently cannot impede,
stifle, or obstruct the program's functioning by subsequently withdrawing the consent.
(c) Maine
March 28, 1903
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A Joint Resolution of the Senate and House of Representatives in the General Court Approved of
a White Mountain National Forest Reserve in the White Mountain Region; consents to the
acquisition by the United States by purchase, gift or condemnation of such lands as in the
opinion of the Federal Government are needed for the establishment of a National Forest
Reserve.
December 18, 1933
This Act limited the authority of the United States to acquire land by gift or purchase, but not by
condemnation, needed for the consolidation of National Forests.
March 22, 1935
This Act authorized the Receiver of "Bates College Estate" to sell to the United States of
America such property in the Towns of Alfred and Lyman (York County) of the Estate as may
be authorized by the court for the use of the United States Forest Service as a Forest
Experimental Station.
April 6, 1935
Imposed a 600,000-acre limit.
March 6, 1937
This Act gave consent to acquisition by the United States of such lands in Alfred, Lyman, Hollis
and Dayton (York County) as, in the opinion of the United States, are needed for establishment
and consolidation of an Experimental Forest. It provided no land should be acquired east of
Route 5 in Hollis and Dayton, nor more than 1-1/2 miles from lands purchased from Bates
College Estate. This Act provides further that the aggregate area acquired shall not exceed 3,000
acres.
April 27, 1951
(This Act as amended by Chapter 308, Sec. 57 of the laws of 1953, "Acquisition of National
Forests" is contained in Chapter 36, Sec. 31, of the Revised Statutes of Maine, 1954). It provides
that land may be acquired under the provisions of the Weeks Act of March 1, 1911, (36 Stat.
961), for National Forest purposes "within that portion of Oxford County included or within five
miles of the purchase unit boundaries of the White Mountain National Forest on July 5, 1935."
This section the provides as follows: "The provisions of this section as they relate to
Oxford County shall be limited to such acquisition as shall have been actually acquired prior to
April 27, 1951, and no further land in Oxford County shall be acquired after such date."
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(The Present Law Pertaining To Acquisitions Under The Weeks Law Which Prohibits
Acquisitions In Oxford County After April 27, 1951, But Which Still Authorizes Acquisition Up
To 300,000 Acres In Hancock, Washington And Penobscot Counties Easterly Of The Penobscot
And Mattawamkeag Rivers And Not Over 300,000 Acres That Part Of Aroostook County,
Commencing At The Northwest Corner Of Twp. 7, Range 5, Aroostook County, And Running
Thence Easterly Along The North Line Of Said Twp, And The Continuation Thereof Easterly To
The East Line Of Aroostook County Or International Boundary Line, But Provides No
Acquisition Shall Be Made Against The Protest Of Any Owner, Is Contained In Section 31 Of
The Revised Statutes Of Maine, 1954).
March 22, 1971
(12 Mrsa, Sec 751) Acquisition Of Land By Federal Government; concurrent Jurisdiction.
The consent is given to the acquisition by the United States of America by purchase or gift, but
no by condemnation, of such lands as in the opinion of the Federal Government may be needed
for the establishment, consolidation and extension of National Forests. The State shall retain a
concurrent jurisdiction with the United States in and over lands so acquired so far that civil
process in all cases, and such criminal process as may issue under the authority of the State
against any person charged with the commission of crime without or within said jurisdiction,
may be executed thereon in like manner as if this section and sections 752 and 754 had not
passed. The State shall retain exclusive jurisdiction over all matters referred to in the proviso
contained in section 752. (R.S. 1954, c. 36, Sec. 28.)
(12 MRSA, Sec. 753) State consent to acquisition of National Forests.
Subject to the Act of Congress of March 1, 1911, 36 Statute 961, known as the Weeks Act (16
U.S.C.A. Sections 552, 563) and Acts amendatory thereof and supplemental thereto, the consent
is given for the United States to acquire by purchase, gift or exchange upon the payment of
adequate compensation not exceeding 300,000 acres of land within the Counties of Hancock and
Washington and that part of Penobscot County easterly of the Penobscot and Mattawamkeag
Rivers, and not exceeding 300,000 acres of land in that part of Aroostook County which lies
south of the following line, to wit: Commencing at the northwest corner of Township 7, Range 5
in Aroostook County, and running thence easterly along the north line of said township and the
continuation thereof easterly to the east line of Aroostook County or international boundary line,
and such lands within that portion of Oxford County included within purchase unit boundaries of
the White Mountain National Forest on July 5, 1935, all as are suitable for National Forest
purposes, and not over 2,000 acres in Cumberland County for preserves for the protection and
conservation of migratory birds; but no such acquisition shall be made against the protest of any
owner. Sections 751, 752 and 754 shall not apply to any lands acquired under this section and
section 755.
R.S. 1954, c. 36, Sec. 31, 1971, c. 105.
Historical Note
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The 1971 amendment gave State's consent for United States to acquire land by "gift or
exchange" as well as by purchase and made changes as to Oxford County land, which could be
acquired.
June 20, 1975
Section 1. 12 MRSA Sec. 753, as amended by P.L. 1971, c. 105, is further amended by adding
at the end the following new sentence:
This section as it relates to Oxford County shall be limited to such acquisition as shall have been
actually acquired prior to the effective date of this Act and no further land in Oxford County
shall be acquired after such date, unless such acquisition is approved by the voters of the
municipality in which such land, in whole or in part, is located.
d. Michigan
Michigan Statutes Annotated
Michigan Statutes Annotated
National Forests Act 312, 1923, p. 489; effective August 20, 1923. (Title as amended by Pub.
Acts, 1935, No. 216, p. 350; effective September 21, 1935).
An Act to empower the United States of America to acquire lands in the State by purchase or
otherwise for establishing, consolidating, and extending National (and State) Forests; to grant to
the United States of America all rights necessary for the proper control and administration of
lands so acquired; (and to authorize cooperative agreements between the State and the United
States for the acquisition, management, and operation of public forest lands).
The People of the State of Michigan enact:
Chap. 4.71 - National Forests, acquisition of lands; execution of process. SECTION 1: That the
consent of the State be and is hereby given to the acquisition by the United States, by purchase,
gift, or condemnation with adequate compensation, of such lands as in the opinion of the Federal
Government may be needed for the establishment, consolidation and extension of National
Forests: Provided, that the State shall retain a concurrent jurisdiction with the United States in
and over lands so acquired so far that civil process in all cases, and such criminal process as may
issue under the authority of the State against any person charged with the commission of any
crime without or within said jurisdiction, may be executed thereon in like manner as if this Act
had not been passed.
Sec. 4.72. Public forestlands; cooperative agreements with federal agencies for acquisition,
management and operation; administered by conservation commission; gross proceeds,
distribution; title; reimbursement of State. Sec. 1a. Authority is hereby given for the
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conservation commission to enter into cooperative agreements with such federal agencies as
have or may be given such authority by act of congress for the purpose of acquisition,
management, and operation of public forest lands. Under such cooperative agreements, forest
lands purchased by the United States shall be administered by the conservation commission as
State forest lands and, during the period the agreement remains in force, one-half [1/2] of the
gross proceeds from all lands covered by the agreement and to which the United States holds title
shall be paid by the State to the United States: Provided, that when the amount of such payments
shall equal the total sum expended by the United States in acquiring said lands, title to said lands
shall be transferred from the Federal Government to the State: And provided further, that in the
event of the termination of said cooperative agreements where the title to said lands is in the
United States, then the Federal Government shall reimburse the State for [so much of the] State
funds as have been expended in the administration, development, and management of the lands
[involved as the Secretary of Agriculture may decide to be fair and equitable]. (MCL Sec.
3.401a.)
History. Added by Pub Acts 1935, No. 216, eff September 21; as amended by Pub Acts 1937,
No. 234, imd eff July 21.
Digest reference. See Callaghan's Mich Dig, Forestry and Lumbering, Sec. 2.
Sec. 4.73. Same; federal legislation. Sec. 2. Power is hereby conferred upon the congress of the
United States to pass such laws and make or provide for the making of such rules and
regulations, of both a civil and criminal nature, and provide punishment therefore, as in its
judgment may be necessary for the administration, control, and protection of such lands as may
be from time to time acquired by the United States under the provisions of this act. (MCL Sec.
3.402; CL '29, Sec. 415.)
e. Minnesota
Minnesota Statutes Annotated, Volume 3
Chap. 1.045 - State consents to acquisition of certain lands. -- Consent is given to the acquisition
by the United States in any manner authorized by Act of Congress of lands lying within the
original boundaries of the Chippewa National Forest and the Superior National Forest for any
purpose incident to the development or maintenance of those forests, subject to concurrent
jurisdiction of the State and the United States as defined in section 1.041.
Chap. 1.046 - Evidence of consent.
The consent of the State given under sections 1.041 to 1.048 to the acquisition by the United
States of any land or right or interest in land or to the exercise of jurisdiction over any place in
this State shall be evidenced by the certificate of the governor issued in duplicate, under the great
seal of the State, upon application by an authorized officer of the United States and upon proof
that title to the property has vested in the United States. The certificate shall set forth:
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(1) a description of the property,
(2) the authority for, purpose of, and method used in acquiring it, and
(3) the conditions of the jurisdiction of the State and the United States over it, and
shall declare the consent of the State under sections 1.041 to 1.048, as the case may
require. When necessary for proper identification of the property a map may be
attached to the certificate, and the applicant may be required to furnish it. One
duplicate of the certificate shall be filed with the Secretary of State. The other shall
be delivered to the applicant, who shall record it in the Office of the County Recorder
of each county in which the land or any part of it is situated.
Amended by Laws 1984, c. 628 art. 1, Sec. 1.
f. Missouri
Vernon's Missouri Statutes Annotated
Chap. 12.010 - Consent given United States to acquire land by purchase for certain purposes. -The consent is hereby given in accordance with the seventeenth clause, eight section of the first
article of the Constitution of the United States to the acquisition by the United States by purchase
or grant of any land in this State which has been or may hereafter be acquired, for the purpose of
establishing and maintaining post offices, internal revenue and other Government offices,
hospitals, sanatoriums, fish hatcheries, and land for reforestation, recreational and agricultural
uses. Land to be used exclusively for the erection of hospitals by the United States may also be
acquired by condemnation. (R.S. 1939, Chap. 1291, A.L. 1949, p. 316, A. 1949, S.B. 1005; L.
1957, p. 726, Sec. 1.)
g. New Hampshire
The current law authorizing acquisition for any public purpose authorized by the laws of the
United States is contained under the Acts set forth in the New Hampshire Revised Statutes, 1977.
121:1 Acquisition Authorized. Subject to the provisions of this chapter, consent is given to the
acquisition of lands in this State by the United States of America for any public purpose duly
authorized by the laws of the United States.
History
Source. 1935, 74:1 RL 3:1
121:2 Land Use Board. There shall be a land use board consisting of the members of the
Planning and Development Commission. The members of the board shall serve without
compensation. They shall establish reasonable rules of procedure and shall keep written records.
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History
Source. 1935, 74:3. 1937, 26:1. RL 3:2
Transfer of functions. The state Planning and Development Commission was abolished, and all
of its powers, duties, functions, personnel, records and property were transferred to the
Department of Resources and Economic Development by 1961, 223:3. See RSA 12-A:7.
121:3 Approval of Acquisition. No land shall be acquired pursuant to this chapter until the
acquisition shall have been recommended by the land use board and approved by the governor
and council; but the provisions of this chapter shall not apply to the acquisition by the United
States of sites for post offices, custom houses, or other public buildings or effect an amendment
or repeal of RSA 123 or RSA 272.
History
Source. 1935, 74:2. RL 3:3
CONDEMNATION FOR CERTAIN PURPOSES
121:4 Procedure. At least 14 days before the land use board shall take action upon any proposed
acquisition of land in any town or city, it shall, by letter addressed to the board of selectmen in
such town, or to the board of mayor and aldermen in such city, advise it of the proposed
acquisitions. At the request of the town selectmen or the city board of mayor and aldermen
where the purchase of such land is contemplated, the land use board shall grant a public hearing
in such town or city, or at some other convenient place. Provided, however, that no land shall be
acquired under the provisions of this chapter until its acquisition shall be approved by a majority
of the voters present and voting at a regular or special town meeting in towns, or by a majority
vote of the board of mayor and aldermen in cities.
History
Source. 1935, 74:4. RL 3:4
121.5 Approval by Governor and Council. The governor and council, upon recommendation of
the land use board, are authorized on behalf of the State: (a) To accept leases or enter into other
agreements with the United States, or a duly authorized agency thereof, for the administration
and maintenance of any such lands, with or without improvements, upon such terms and
conditions as they may consider proper. Net income derived from any of such lands which may
be designated for administration by the State Forestry Department shall be disposed of by the
governor and council in the same manner as other income received from State Forests and
forestry reservations; and all income other such lands shall be covered into the general funds of
the State; (b) To accept deeds from the United States, of any such lands, upon such terms and
conditions as they may consider proper.
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History
Source. 1935, 74:5. RL 3:5
Reference in text. Income from lands which may be designated for administration by the State
Forestry Department, referred to in the text, apparently refers to federal lands placed under the
jurisdiction of the present Department of Resources and Economic Development and income
there from payable to the forest improvement fund as provided by RSA 219:14.
121:6 Limitations on Right to Acquire. Lands which may be acquired under this chapter shall
be such as by reason of quality, location, or condition are better adapted to public conservation,
forestry, recreation, experimental, and demonstration purposes than for continued private
ownership and development. Such acquisition shall be limited in total to 2 percent of the total
land area of the State, and shall be further limited in each town or city to an amount of land, the
assessed valuation of which on April 1 of the preceding year was 5 percent of the total assessed
valuation on such date of all the real estate in such town or city. The provisions of this chapter
shall not limit the authority of the United States to acquire lands for the White Mountain
National Forest within the boundaries established by proclamation of the president of the United
States, dated October 26, 1929; and the limitations as to area and valuation contained in this
section shall not apply to acquisitions within the boundaries of the existing White Mountain
National Forest Purchase Unit, or any new National Forest purchase units that may be
recommended by the land use board and approved by the governor and council; nor shall such
acquisitions be included in computing such limitations.
History
Source. 1935, 74:6 RL 3:6.
121:7 Jurisdiction Over Lands Acquired. The State shall retain concurrent jurisdiction with the
United States in and over all lands acquired hereunder so far that the civil and criminal law of
this State shall apply on said lands; and exclusive jurisdiction in and to said lands shall revert to
the State when such lands shall cease to be owned by the United States.
History
Source. 1935, 74:7. RL 3:7
121:8 Eminent Domain Proceedings, When Permissible. No owner of land which the United
States proposes hereby to acquire shall be required to sell by institution of proceedings for
condemnation; but when a landowner shall have agreed to sell to the United States and the sale
price has been agreed upon, proceedings for condemnation may be instituted for the sole purpose
of clearing title.
History
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Source. 1935, 74:8. RL 3:8.
h. New York
No consent to the acquisition of land by the United States exists in the State of New York.
i. Ohio
March 14, 1980
Sec. 1503.32. Consent is given to the United States DEPARTMENT OF AGRICULTURE
FOREST SERVICE AND, between May 6, 1902, and March 14, 1980, TO ANY OTHER
AGENCY OR INSTRUMENTALITY OF THE UNITED STATES, for the acquisition, by
purchase, OR gift of such lands as in the opinion of the Federal Government may be needed for
the establishment, consolidation, and extension of National Forests and for flood control and soil
conservation work in the State. AT THE TIME THE FOREST SERVICE BEGINS TO
NEGOTIATE WITH THE OWNER OF LAND TO ACQUIRE LAND, THE FOREST
SERVICE SHALL NOTIFY IN WRITING THE BOARD OF COUNTY COMMISSIONERS
OF THE COUNTY IN, WHICH THE LAND IS LOCATED. SUCH NOTICE SHALL
INCLUDE THE LOCATION AND AMOUNT OF LAND THAT THE FOREST SERVICE
INTENDS TO ACQUIRE. THE BOARD OF COUNTY COMMISSIONERS SHALL
PUBLISH, IN THE OHIO NEWSPAPER OF LARGEST CIRCULATION IN THE COUNTY
IN, WHICH THE LAND IS LOCATED, NOTICE OF THE INTENT OF THE FOREST
SERVICE TO ACQUIRE THE LAND AND THE LOCATION THEREOF.
The State retains concurrent jurisdiction with the United States over such areas in the matter of
service thereon of all civil and criminal process issuing under the authority of the State.
The boundaries of any areas selected under this section shall be first approved by the governor
and such other state agencies and departments as he designates.
j. Pennsylvania
Sec. 101. United States may acquire land; approval; resumption of control; concurrent
jurisdiction.
The United States of America is hereby empowered to acquire, by purchase or by making
adequate compensation under condemnation proceedings, such lands as, in the opinion of the
Federal Government, may be needed for the establishment of National Forest Reserves, in
accordance with an act of Congress, entitled "An act to enable any State to cooperate with any
other State or States, or with the United States, for the protection of the watersheds of navigable
streams, and to appoint a commission for the acquisition of lands for the purpose of conserving
the navigability of navigable rivers," approved the first day of March, 1911: Provided, That the
approval of the State Forestry Reservation Commission and the Water Supply Commission (now
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Water and Power Resources Board) shall be first had and obtained: Provided further, That the
Commonwealth of Pennsylvania shall retain a concurrent jurisdiction with the United States in
and over such lands so far that civil process in all cases and such criminal process as may issue
under the authority of the Commonwealth of Pennsylvania against any persons charged with the
commission of any crime, without or within said jurisdiction, may be executed thereon in like
manner as if this act had not been passed. 1911, May 11, P.L. 271, Sec. 1; 1921, April 21, P.L.
257, Sec. 1.
Historical Note. The amendment of April 21, 1921, eliminated from this section a proviso that
"if at any time in the future after the establishment by the Federal Government of such National
Forest Reserves in the Commonwealth of Pennsylvania, the Commonwealth shall desire to
resume complete ownership and control over said lands, it may do so by appropriate legislative
action, providing therein for the repayment to the United States of America of all moneys which
may have been spent in acquiring lands the ownership of which is to be resumed, and interest
thereon at the rate of two per centum per annum."
Section 5 of Act 1911, May 11, P.L. 271, saved from repeal the following act: 1905, April 22,
P.L. 260 (sections 711-715, 741-750 of Title 35, Health and Safety), 1905, April 27, P.L. 312
(sections 1401-1411 of Title 71); and 1909, May 14, P.L. 855, repealed 1919, July 17, P.L. 1010,
Sec. 27.
Sec. 102. Necessary laws authorized.
That the said United States of America is hereby empowered to pass such laws as it may deem
necessary to the acquisition of land, as hereinbefore provided, and for incorporation of such land
into said National Forest
Reserves, as in the opinion of the Federal Government may be needed for this purpose. 1911,
May 11, P.L. 271, Sec. 2.
Sec. 103. Laws for management of lands authorized.
That the said United States of America is hereby empowered to pass such laws, and to make or
provide for the making of such rules, of both a civil and criminal nature, and provide punishment
for the violation thereof, as in its judgment may be necessary for the management, control, and
protection of such lands acquired from time to time by the United States of America under the
provisions of this act: Provided, however, That the authority hereby given shall be subject to all
the conditions and stipulations and reservations contained in this act. 1911, May 11, P.L. 271,
Sec. 3.
Sec. 104. State forests not to be condemned.
That this act shall not confer power to condemn land now held or hereafter to be acquired by
Pennsylvania as and for a State Forest Reserve. 1911, May 11, P.L. 271, Sec. 4.
k. Vermont
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February 17, 1925
This Act authorized the acquisition by the United States by purchase, gift, or condemnation of
such lands within the State as in the opinion of the Federal Government are needed for the
establishment, consolidation and extension of National Forests.
March 26, 1935
This Act amended the 1925 Act by creating a Board consisting of the Governor, Attorney
General, Commissioner of Forestry and Commissioner of Agriculture to approve for acquisitions
in the Towns of Bristol, Lincoln, Warren, Ripton, Granville, Hancock, Rochester, Pittsfield,
Chittenden, Goshen, Middlebury, Salisbury, Leicester, Brandon, Mendon, Stockbridge, Winhall,
Londonderry, Peru, Dorset, Danby, Landgrove, Weston, Wallingford, Mt. Holly, Mt. Tabor,
Stratton, Somerset, Wardsboro, Dover, Wilmington, Whitingham, Readsboro, Searsburg,
Sunderland, Glastenbury, Manchester, Woodford, Stamford, Jamaica, Bennington, Pownal,
Shaftsbury, Arlingtron and Sherburne as in the opinion of the Federal Government are needed
for the establishment, consolidation and extension of National Forests. The Act provided the
Board should approve of areas and not individual or separate tracts.
April 10, 1937
This Act further amended the 1925 Act, as amended by the 1935 Act, to include the Lieutenant
Governor on the Board to approve acquisitions. The Act also provides that the Board shall act
only after written approval of the Town Selectmen or the Supervisors of an unorganized Town or
gore wherein such lands are located.
April 9, 1941
A Joint Resolution of the Senate and House of Representatives of the State was adopted to the
effect that the United States should compensate the Towns for the loss in tax revenue due to the
reduced grand lists (tax rolls) in certain of the Towns occasioned by the ownership of National
Forest land. The Resolution provided copies should be sent to each of the Vermont
Representatives in Congress.
April 3, 1947
This Act authorized the conveyance to the United States by the State of two parcels of land in the
unorganized Town of Somerset conveyed to the State by two deeds in Somerset Land Records in
1938 and 1939 recorded in Book 9, Pages 358 and 359.
(The present law as set forth above is contained in the Vermont Statutes 1959 Revision, Title 1,
Section 554.)
11. West Virginia
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February 27, 1909
This Act gives consent to the acquisition by the United States by purchase, condemnation, or
otherwise such lands for the conservation of the Forests or for any other purpose for which the
same may be needed or required by the government of the United States.
(This authority is contained in Section 1-1-3 of the West Virginia Code.)
Chap. 1.055 - National Forest (January 26, 1925)
(1) Consent of the State is hereby given to the acquisition by the United States by
purchase, gift, lease or condemnation, with adequate compensation therefore, of such
areas of land not exceeding two million acres, as the United States may deem
necessary for the establishment of National Forests, in accordance with the Act of
Congress approved June 7, 1924 (Act June 7, 1924, c. 348, 24 Stat. 1105), and the
commissioners of public lands are hereby authorized to sell and convey for a fair
consideration to the United States, any State lands included within such areas;
provided, that the State shall retain concurrent jurisdiction with the United States in
and over such areas so far that civil process, in all cases, and such criminal process as
may issue under the authority of the State against any persons charged with the
commission of any crime within or without said areas, may be executed thereon in
like manner as if this consent had not been given. Provided, further, that the
boundaries of any areas so selected shall be first approved by the Governor, the
Commissioners of public lands, the Conservation Commission, and the County Board
of each county in which any such area is located.
(2) Power is hereby conferred upon the Congress of the United States to pass such
laws and to make or provide for the making of such rules and regulations, of both a
civil and criminal nature and provide punishment therefore, as in its judgment may be
necessary for the administration, control and protection of such lands as may be from
time to time acquired by the United States under the provisions of subsection (1).
June 16, 1933
Acquisition not to exceed 2,000,000 acres.
2. Riparian Rights.
Riparian rights are the rights of one with ownership of shoreline (a natural watercourse -- stream,
river, lake, or tidewater) to access to, or use the shore, bed, and water of the watercourse. A
riparian owner refers to one with property bordering streams or rivers, and littoral owner refers to
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one with property bordering the sea or a lake. Frequently, however, riparian owner is used to
cover both situations and covers both in this material.
A riparian landowner has certain rights in and to the waters that flow or lie adjacent to his
property. These rights go with ownership of riparian land and are considered property rights.
They arise out of such ownership rather than out of ownership of the bed of the stream or body
of water. These rights include:
Access to the water.
Construction of wharves, piers, and booms in aid of navigation, subject to regulations
by law.
Reasonable use of the water.
Having stream flow in its natural course and volume past the property.
Additions to the land by accretion or reliction. (Accretion is growth in size, such as
from shifting stream channels; reliction is an area left permanently exposed by the
gradual withdrawal of the water of a sea, lake, or stream.)
Hunt, fish, trap, or swim in the water, subject to appropriate regulatory laws.
The listed rights and discussion that follows include broad generalities. If doubtful on the
interpretation of a law or rule, request counsel from the Regional Attorney.
Do not obtain state water use permits for reasonable withdrawals of water for ordinary uses such
as drinking and irrigation. Do, however, cooperate and provide water use information desired by
the State.
The reservation principle discussed in FSM 2541 also applies to water adjoining land with public
domain status, though this mainly as it applies to the western states where water rights are
subject to appropriation.
Riparian rights do not apply to the use of the bed of a stream, river, or lake for such things as
gravel removal, water crossings (with bridges or culverts and associated fills), or changing the
course of a stream or river. These depend upon whether the owner actually owns the land under
the water. This ownership varies by states. In R-9, the riparian owner owns the land under
nonnavigable waters. In Illinois, Maine, Michigan, New Hampshire, New York, Ohio, Vermont,
and Wisconsin, the riparian owner also owns the land under navigable waters. There are some
exceptions; in Wisconsin, this does not include navigable lakes; in New Hampshire, it does not
include natural lakes over 20 acres; and in Maine, it does not include natural lakes over 10 acres.
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In Indiana, Missouri, Pennsylvania, and West Virginia, the riparian owner owns the land along
navigable waters to the low water mark only. In Minnesota this ownership extends only to the
high water mark.
Following is the Regional Attorney's complete state-by-state discussion:
a. Illinois
The riparian owner owns the soil under navigable streams to the center thread thereof subject to
the public rights of navigation. Under the general rule of law, the riparian owners own the beds
of navigable and nonnavigable rivers and streams. However, where the state owns the beds,
public rights are given to fish and hunt on the waters overlying the state-owned beds. A riparian
proprietor along a navigable watercourse has substantially the same rights as does one who is a
riparian to a nonnavigable body of water, except that his rights are always subject to the public
easement of navigation, Middleton v. Pritchard, 4I11. 509, 519 (1842). A riparian proprietor
with ownership of the bed has the right to use the water of a watercourse while it is on his land
for swimming, boating, fishing and other similar nonconsumptive uses. A riparian owner's
property line bordering Lake Michigan is the waterline as it usually exists when unaffected by
storms, piers or other disturbing factors, although such owners have a right on ingress and egress
to their property, Brundage v. Knox, 279 I11. 450, 470 (1917).
b. Indiana
Title to the soil of nonnavigable streambeds is in the riparian owner. The owner of the bed of a
nonnavigable stream or lake has the right to prevent others from trespassing, that is, from using
the streambed, Patton Park, Inc. v. Pollak, 115 Ind. App. 32, 55 N.E. 2nd 329 (1944).
Title of an owner bordering on a navigable stream extends only to the low water mark, unless
title to the streambed has been expressly conveyed.
If the state has title to the bed of a navigable water, it is entitled to sand, gravel, and other
mineral products found therein. Where a navigable river gradually and imperceptibly shifts its
course, ownership of the state and of the riparian owners follows the shifting shore land.
c. Maine
In Maine, New Hampshire, New York, and Vermont the rule regarding stream or riverbed
ownership is the same. In these States, the English Common Law Rule applies, and title to the
bed of rivers or streams, whether navigable or not, is in the riparian owner. However, natural
ponds (as opposed to rivers and streams) in excess of 10 acres in Maine, and in excess of 20
acres in New Hampshire, are excepted from this rule under the statutory successors to the Great
Pond Ordinance. Under the English rule, title to the beds of tidal waters rests with the Crown.
Under nontidal waters, the riparian owner holds title to the bed. For purposes of determining
landownership, the English Common Law Rule simply holds anything tidal to be navigable and
anything nontidal to be nonnavigable.
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d. Michigan
The courts rule that the soil of the beds of inland lakes belong to the riparian owners and not to
the state. The common law prevails and the rule is sustained by an unbroken line of authorities
that a grant of land bordered by a stream, whether navigable or not, carries with it the bed of the
stream to the center thread thereof, Butler v. Grand Rapids Railroad 85 Mich. 246, 48 N.W. 569
U.S. 85, 40 L, Ed. 86 (1895). Thus, the riparian proprietor owning all of the shore of an inland
lake meandered by the Government, is the owner of the land beneath such lake, Pleasant Lake
Hills Corp. v. Eppinger 235 Mich. 174, 209 N.W. 152 (1926). The state asserts ownership to the
beds of the Great Lakes. People v. Silberwood 110 Mich. 103, 67 N.W. 1087, 32 L.R.A. 694
(1896): Hilt v. Webber 252 Mich. 198, 233 N.W. 159, 71 ALR 1238 (1930).
e. Minnesota
The riparian owner on a navigable water takes title to the high water mark only. Within the
banks of the watercourse and below the high water mark, the public right is supreme, Carpenter
v. Hennepin 56 Minn. 513, 58 N.W. 295 (1894).
f. Missouri
Title to the bed of navigable lakes and streams generally usable as highways for commerce, in
the customary modes of trades and travel on water is in the public. Title originally was in the
United States, but passed to the State upon its admission to the Union. In navigable waters of
this nature, riparian owners own to the low water mark, Conren v. Girvin 341 S.W. 2nd 75
(1960), and riparians have the same rights in such navigable waters as in nonnavigable waters,
subject to:
- Public ownership of the bed.
- The right of the public to navigate upon the water.
Title to the bed of nonnavigable waters is in the adjoining riparian owners, and owners on each
side of a nonnavigable stream own to the bed or centerline of the stream's main channel, Bratschi
v. Loesch 330 Mo. 697, 51 S.W. 2nd 69 (1932). However, even though the bed of nonnavigable
streams may be in private ownership as the property of the adjacent riparian, such ownership
may be subject to an easement for public use. The leading case on this point is Elder v. Delcour,
269 S.W. 2nd 17 (1954). The test laid down by the Supreme Court in the Elder (supra) case
seems to be whether the stream may, in fact, be used by the public for any mode of travel. If the
stream is so usable, it is subject to the public easement, even though the ownership of the bed is
in the adjoining landowner. Such public travel may be by boat, canoe, or even by wading. The
easement of public travel is protected by the courts the same as travel upon a public highway, if
the obstruction of a navigable stream, which presents free travel thereupon, is a nuisance per se
and may be abated by judicial action. Weller v. Missouri Lumber and Mining Company, 176
Mo. App. 243, 161 S.W. 853 (1913).
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g. New Hampshire
The English rule of riparian ownership applies and title to the bed of nontidal streams, whether
navigable or not, has been deemed to be vested in the riparian owner. Norway Plains Company
v. Bradley, 52 N.H. 86 (1872). Natural lakes and/or ponds exceeding 20 acres are excluded from
this rule, and the state has been deemed to own the beds under such lakes or ponds. Revised
Statutes Annotated 1955, Chapter 271, Section 20; New Hampshire Laws of 1887, Chapter 86,
Section 31. Title to the bed of nonnavigable streams also lies with the riparian owners.
h. Ohio
Title to the bed of navigable streams is vested in the riparian owner subject to the public rights of
navigation in and unto the waters of such stream. Lakeshore and M.S.R. Company v. Platt, 53
Ohio 254, 41 N.E. 243, 29 L.R.A. 52 (1985). The riparian owner has been deemed to hold title
to the center thread or middle of such rivers and streams.
i. Pennsylvania
The riparian owner's title extends to the low water mark of navigable streams, subject, however,
to public navigation and fishing rights between the high and low water mark. All title to the beds
of navigable
streams below the low water mark belongs to the state. Miller v. Lutheran Conference and Camp
Association, 331 Pa. 241, 200 A. 646, 130 ALR, 1245 (1938).
j. Vermont
Bed ownership of nontidal rivers and streams, whether navigable or not, is deemed vested in the
riparian owner. Miller v. Mann, 55 Vt. 475
(1882). See Maine discussion also.
k. West Virginia
The State owns the bed to navigable rivers and streams, and the riparian owner takes title only to
the low water mark.
l. Wisconsin
The riparian owner holds title to the bed to the center or thread of navigable streams and rivers.
In the case of Munninghoff v. Wisconsin Conservation Commission, 255 Wis. 252, 38 N.W. 2nd
712 (1949), the Wisconsin Supreme Court said:
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The owner of the banks of the navigable or nonnavigable stream is the owner of the bed. The
owner of the submerged soil of a running stream does not own the running water, but has certain
exclusive rights to make a reasonable use of the water as it passes over or along his land. For
instance, he may erect a pier for navigation, pump part of the water out of the stream to irrigate
his crops; his cattle may drink of it, and his muskrats may use it to gather vegetation for the
construction of muskrat houses or for food.
Regarding navigable lakes, the State has held that it is the owner in trust for legitimate public use
of the beds of such navigable lakes, and that it cannot convey that right to any private use, nor
can it abdicate the trust.
m. General
Where the United States as riparian owner, owns the land under bodies of water, do not obtain
state permits for water crossings, dams, and fish habitat improvements, unless the permits are for
water pollution control. State permits are required pursuant to the federal Clean Water Act
(CWA) for programs approved by the U.S. Environmental Protection Agency or regulations
under CWA Section 404t. Other permits are not required. Check with WO Watershed personnel
on questionable situations.
If the United States does not own the land under bodies of water, comply with state law
regarding water crossings, dams, and other uses of such land. Obtain permits if required by state
law. In the case of fish habitat work, use a cooperative agreement with the state since the work
would be off National Forest land and the state would handle any permit requirements.
Avoid obtaining permits where not obligated as it erodes the principle of Federal Supremacy.
Rather, attempt to get the state to accept voluntarily submitted information.
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In states where riparian ownership does not include the land under navigable bodies of water, a
state permit is required if the body of water in question is navigable. The definition of
navigability is discussed below, but many bodies of water are questionable. Rather than contest
each questionable case, apply for permits related to questionable bodies of water recognized
locally as being navigable. The application should clearly show that navigability is considered
questionable and application is made in the interest of cooperation to avoid delays associated
with a legal determination of navigability. Use caution in exercising riparian ownership rights.
If the United States shares riparian ownership with others, do not interfere with or detract from
the rights of those others.
Examples of sharing riparian ownership include
(1) Where National Forest ownership includes one side of a stream with another
owner on the opposite side,
(2) Where there are other owners above and/or below National Forest land on a
stream, or
(3) Where National Forest land encompasses only a portion of the shoreline of a lake.
Be aware of the limits and boundaries of riparian rights to avoid encroachment.
Keep adequate documentation that full consideration was given to environmental impacts of
proposed actions, which affect the environment. Prepare a thorough environmental analysis
report, and in some cases an environmental impact statement as well.
The definitions of navigability, as stated in a U.S. Supreme Court case, is that navigable streams
or lakes in fact are navigable in law; that they are navigable, in fact when they are used or are
susceptible to being used in their natural or ordinary condition, as highways for commerce over
which trade and travel are or may be conducted.
This rule results in several interpretations. Only little specific direction for R-9 is possible.
Consider each case on its own merits. In some instances, states may interpret navigability more
liberally than Federal criteria would support. Refer problems to the Regional Attorney for
assistance.
The definition of navigability determines which beds underlying waters passed to the states upon
admission to the Union. However, some states consider ownership of beds of navigable waters
to belong to the riparian owner.
Occasionally a state refers to unmeandered versus meandered bodies of water, implying that a
test of navigability may rest with whether the body was meandered (a meandered body of water
is one actually surveyed and its margins platted). A meandered body of water has no bearing
upon navigability and bed title ownership. It is, however, evidence that an unmeandered body of
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water may not have been used as a highway for commerce or travel. The terms unmeandered
and nonnavigable are not synonymous.
3. Road Entrance Permits.
Obtain permits to construct a road entering or crossing a public road administered by another
public agency and if that agency requires a permit, obtain a permit for all cases where the public
road is on non-Federal land. If the road to be entered or crossed is on Federal land under Forest
Service or other Federal agency administration, apply for a permit. The permit is for safety and
engineering control; it is not prejudicial to the rights of the United States.
4. Monitoring Swimming Waters.
Policy for monitoring swimming water is in FSM 2532.03, item 10. Monitoring shall be
consistent with applicable state and Federal regulations.