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FOREST SERVICE MANUAL
SOUTHWESTERN REGION (REGION 3)
ALBUQUERQUE, NM
FSM 5400 – LANDOWNERSHIP
CHAPTER 5460 – RIGHT-OF-WAY ACQUISITION
Supplement No.: 5400-2009-2
Effective Date: January 15, 2009
Duration: This supplement is effective until superseded or removed.
Approved: GILBERT ZEPEDA
Deputy Regional Forester
Date Approved: 01/15/2009
Posting Instructions: Supplements are numbered consecutively by title and calendar year. Post
by document; remove the entire document and replace it with this supplement. Retain this
transmittal as the first page(s) of this document. The last supplement to this title was
5400-2009-1 to FSM 5400, Zero Code.
New Document
5460
16 Pages
Superseded Document(s) by
Issuance Number and
Effective Date
5460
5400-91-1, dated 7/19/1991
12 Pages
Digest:
5460.11 – Adds reference to United States Supreme Court ruling in Wilcox v. Jackson.
5460.43 – Removes Delegation of Authorities for Forest Supervisors and references FSM
5404.15, R-3 Supplement, where those delegations may be found. Director of Lands and
Minerals authorized to approve rights-of-way case accomplishment.
5463 – Reissues R-3 Supplement 5400-91-1 to comply with directives format.
5464.3 – Reissues R-3 Supplement 5400-91-1 to comply with directives format. Changes title of
“Deed of Further Assurance” in Exhibit 1 to “Right of Way Deed.” Changes title “Assistant
Regional Attorney” to Assistant Regional Attorney.”
R3 SUPPLEMENT 5400-2009-1
EFFECTIVE DATE: 01/15/2009
DURATION: This supplement is effective until superseded or removed.
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CHAPTER 5460 – RIGHTS-OF-WAY ACQUISITION
5465.1 – Reissues R-3 Supplement 5400-91-1 to comply with directives format. Changes title
“Assistant Regional Attorney” to Assistant Regional Attorney.”
5465.4 and 5465.5 – Confirms current addresses for ADOT and NMDOT. Adds guidance for
right-of-way acquisition of easements and/or road authorizations across State, County, City, and
other local agency owned or administered lands pursuant to Office of General Counsel approval.
R3 SUPPLEMENT 5400-2009-1
EFFECTIVE DATE: 01/15/2009
DURATION: This supplement is effective until superseded or removed.
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CHAPTER 5460 – RIGHTS-OF-WAY ACQUISITION
5460.11 – Statutory Authority. In those rare situations where roads have been built by the Forest
Service from appropriated funds on National Forest System land or public domain land and
subsequently the land is patented without a reservation for the road, the Forest Service probably
has jurisdiction for the road under the United States Supreme Court ruling in Wilcox v. Jackson
Ex Dem McConnel, 38 U.S. (13 Pet.) 498; 10 L. Ed. 264; 1839 U.S. LEXIS 457, which states:
“Whensoever a tract of land shall have once been legally appropriated for any purpose,
from that moment the land thus appropriated becomes severed from the mass of public
lands; and no subsequent law, or proclamation, or sale, would be construed to embrace it,
or to operate upon it, although no other reservation were made of it.”
The rule of appropriation set forth in Wilcox has been re-affirmed by courts throughout the
years. In Scott v. Carew, 196 U.S. 100 (1905), the court held that:
“Where particular tracts have been taken possession of by rightful orders of an
executive department, to be used for some public purpose, Congress in legislating will be
presumed to have intended no interference with such possession nor a sale or disposal of
the property to private individuals.”
In Stearns v. United States, 152 Fed. 900 (1907), it was held that:
“Lands of the United States which are used as post office sites, military reservations,
and the like, are not within the operation of the public land laws, and no attempt to make
entries of them in the land offices can be effective for any purpose, because the land officers
have no authority to dispose of them.”
Department of Interior rulings also support the contention that national forest lands are
“appropriated” by the federal government when used for facilities which the Forest Service is
authorized to construct and maintain. For example, in one decision, Interior stated that national
forest lands are devoted to a public use when Forest Service telephone lines are constructed
thereon, under the authority of acts making appropriations for the construction and maintenance
of such lines as the Secretary of Agriculture may deem necessary for the administration of the
forests (44 L.D. 359 [1915]). Interior held that, since the land had been devoted to a public
purpose pursuant to a law of Congress, subsequent disposition of the land would not, in the
absence of an express conveyance by the United States, operate to pass title to the patentee to
such telephone lines or the right of the United States to operate and maintain them. Id.
In a subsequent ruling, Interior held that the same rationale of appropriation applies to National
Forest System lands where roads, trails, bridges or other improvements have been constructed by
the Forest Service at public expense under the authority of appropriation acts (44 L.D. 513
[1916]). Interior stated that, once these “improvements” have been made, the final certificate
and patent should except such portion thereof as is so devoted to public purpose if the lands are
thereafter disposed of under any of the public land laws. Id.
Applying the rule of the Wilcox case, the Solicitor for the Department of Agriculture in a
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September 14, 1951, opinion to the Regional Attorney, Portland, Oregon, stated:
“Although the instructions call for an exception of the type stated, it is clear that
Interior did not consider it necessary to incorporate an express exception in a patent for
the purpose of retaining title to the improvements, together with the rights to maintain and
use the same. The exception is made by operation of law, under the rule of the Wilcox case,
whenever lands are appropriated to a public use under the authority of law; and Interior
has twice ruled that national forest lands are so appropriated when used for facilities which
the Forest Service is authorized to construct and maintain.”
As background to the legal rule to the effect that land encompassing an existing road does not
pass with patent, in a July 21, 1977, memorandum, the Office of the Solicitor, Department of the
Interior, Phoenix, Arizona, states:
“The construction of the trail constituted an appropriation by the government of the
land within the mining claim and as such is reserved from entry under the mining laws.
Forest lands in the actual use and possession of the United States, on which the United
States has made valuable and permanent improvements are withdrawn from mineral
entry.”
In an August 9, 1978, response to the Southwestern Regional Director of Lands and Minerals,
the Office of the General Counsel (OGC), Department of Agriculture, Albuquerque, New
Mexico, advised:
“…we have reviewed the excerpts from several decisions and instructions of the
Department of Interior, which stands for the proposition that a road built and maintained
by the United States, acting through the Forest Service, the land encompassing the road is
withdrawn from mineral entry and would not pass by patent. In our memorandum to you
of March 21, 1978, on Presumptive Rights-of-Way in Arizona, we advised you that we
agreed with the Interior. We still agree and, further concur in that the rule applies to
homestead patents as well.”
When documented case history seems to support an assertion that the United States has
jurisdiction for a road under the United States Supreme Court ruling in the Wilcox case, the
Forest involved will submit the case history to the Regional Forester, who will forward the case
to OGC for legal review, advice and counsel.
5460.43 – Regional Foresters. See FSM 5404.15, R-3 Supplement. The Regional Director of
Lands and Minerals is authorized to approve or recommend “for” the Regional Forester case
accomplishment pertaining to rights-of-way accomplishment.
5463 – CONDEMNATION. See FSM 5480.3, R-3 Supplement.
5464.3 – Interests to be Acquired across Unpatented Mining Claims. When the Forest
Supervisor has determined that a right-of-way is needed, the Forest Supervisor will furnish the
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EFFECTIVE DATE: 01/15/2009
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FSM 5400 - LANDOWNERSHIP
CHAPTER 5460 – RIGHTS-OF-WAY ACQUISITION
Regional Forester the following docket in duplicate for use in preparing a satisfactory instrument
for easements needed across valid unpatented mining claims. (FSM 5464)
1. A plat of the road crossing the claim area, including approximate location of the claim
with ties to public land survey where available. In unsurveyed areas, tie the road survey, claim
corners, and discovery points to permanent monuments established for this purpose or to
previously set official land monuments.
Make a concerted effort to locate and tie the established claim corners to reference monuments
on the road survey.
If only the claim’s approximate location can be given on the plat, show by dash lines and note
that it is approximate.
2. Copies of recording notices and sales documents obtained from a county record search
which shows the true owner or owners of the claim.
3. Status or results of surface right determination for the claim in question.
4. A record of your negotiations with the apparent claim owner consisting of:
a. Claim owner’s name and address.
b. Claim owner’s marital status.
c. Considerations agreed upon.
After receiving the above information, the Regional Forester will prepare a Right-of-Way Deed,
shown in Exhibit 01. The usual title approval or title opinion by the Assistant Regional Attorney
will not be required. Title companies cannot insure claims to unpatented land. It is the Forest
Supervisor’s responsibility to ascertain by a careful county record search and other local inquiry
that the grantor is the owner of record and in possession of the claim. If the deed follows the
approved format as shown in Exhibit 01 and there are no interests indicated in the docket that
will cause problems, the docket will be approved by the Regional Forester and returned to the
Forest Supervisor for execution and recording. If there are problems, the docket will be
forwarded to the Assistant Regional Attorney for review before returning it to the Forest
Supervisor for further action.
R3 SUPPLEMENT 5400-2009-1
EFFECTIVE DATE: 01/15/2009
DURATION: This supplement is effective until superseded or removed.
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CHAPTER 5460 – RIGHTS-OF-WAY ACQUISITION
5464.3 – Exhibit 01
RIGHT-OF-WAY DEED
THIS INDENTURE, made and executed at _____(City)_______, County of _______________,
State of _________________, this _____day of _________________, 20_____, by and between
______________________________, Grantor(s), and the UNITED STATES OF AMERICA,
c/o USDA Forest Service, 517 Gold Avenue, SW, Albuquerque, New Mexico 87102, and its
assigns, Grantee.
WHEREAS, the Grantor(s) (is/are) the claimant(s) of a mineral location known as the
___________________________________claim(s), covering that certain tract of land situated in
section(s) _____________________, T. _______, R. __________, _______M., in the County of
__________________, State of __________________, and within the exterior boundaries of the
______________________ National Forest as described and shown on the plat hereto attached
and made a part hereof, which Location Notice is recorded in Book ________________, at page
_______ of the Official Records of __________________ County, State of _____________, and
WHEREAS, the Grantor(s) (have/has) agreed to grant a right-of-way for a road over and across
the land included in said mining claim(s).
NOW, THEREFORE, THIS INDENTURE WITNESSETH: That for and inconsideration of
_____________________________ Dollar(s) ($_________), the receipt of which is hereby
acknowledged, the Grantor(s) (does/do) hereby grant unto the Grantee and its assigns an
easement for a road, _______ feet in width, with as much additional width as may be required
for adequate cuts and fills, over and across the following described land:
________________________ MERIDIAN
T._________, R.__________,
Sec._____ - ______________________________________________________
Traversing the above-described premises according to the following general courses and
directions, to wit:
(The description can be a map attached as Exhibit A showing the road and ties at the beginning
and ending points – raw land or existing road easement.)
R3 SUPPLEMENT 5400-2009-1
EFFECTIVE DATE: 01/15/2009
DURATION: This supplement is effective until superseded or removed.
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CHAPTER 5460 – RIGHTS-OF-WAY ACQUISITION
5464.3 – Exhibit 01--Continued
THE ACQUIRING AGENCY is the Forest Service, United States Department of Agriculture.
THE GRANTOR(S) further covenants and agrees for itself and its successors and assigns that it
or its successors and assigns will prior to, or upon the issuance of a patent by the United States of
America to the mining claim(s) over which this right-of-way is situated, or at any time upon the
request of an authorized agent of the Grantee, make and execute, or cause to be made and
executed, such further conveyances, instruments, and assurances for the better and more
effectual vesting and confirming of said easement hereby granted in the Grantee as the Grantee
or its agents may require. Provided, if any time hereafter the said easement and right-of-way
shall be abandoned by Grantee or its assigns the rights and privileges hereby granted shall cease
and terminate and the land traversed thereby shall be free from said easement as fully and
completely as if this indenture had not been made.
(THE GRANTOR(S) herein reserves the right to change the location of the easement herein
granted in the events mining activities require it to do so. Such relocation of said easement shall
be at a location mutually agreeable to the parties, provided that Grantee shall not unreasonably
withhold its consent to an alternate location, and further provided that the cost and expense of
such relocation shall be borne by the Grantor(s).)
(Other mutually agreed upon reservations.)
(Use appropriate signature clause from Rights-of-Way Easement Deed Cards, Rights-of-Way
Working Tools, Region 3, F-Signatures.)
(Use appropriate acknowledgment from Rights-of-Way Easement Deed Cards, Rights-of-Way
Working Tools, Region 3, G-Acknowledgments.)
R3 SUPPLEMENT 5400-2009-1
EFFECTIVE DATE: 01/15/2009
DURATION: This supplement is effective until superseded or removed.
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FSM 5400 - LANDOWNERSHIP
CHAPTER 5460 – RIGHTS-OF-WAY ACQUISITION
5465 – RIGHTS-OF-WAY FROM PUBLIC AGENCIES.
5465.1 – Bureau of Land Management. The following direction applies for acquisition of rightsof-way from the Bureau of Land Management (BLM) under the BLM-Forest Service
Interagency Right-of-Way and Road Use Agreement dated May 20, 1980.
1. Use of Existing Roads.
a. Administrative Use. Each agency may use the roads under the jurisdiction of the
other agency for administrative use without further application.
b. Temporary Use for Hauling Products. Each agency may acquire the temporary
right to use roads under the jurisdiction of the other agency for removal of forest and
mineral products by acquiring a license agreement in the form of Exhibit A, License
Agreement, as shown in the May 20, 1980, BLM-Forest Service Interagency
Agreement. Regional approval is not required to obtain this temporary right-ofway. This procedure for joint use of roads was developed in the Washington Office.
The Forest Supervisor shall inform the BLM District Manager in the area that a
license agreement will be needed for the designated timber sale or other project. The
BLM District Manager shall specify the terms of the license on a copy of the license
agreement form. This information will be needed for the timber sale appraisal. The
Forest Supervisor shall notify purchasers of National Forest timber that the license is
needed. The purchaser of National Forest timber shall be required to obtain the
license agreement from the District Manager, BLM.
The same procedure shall be followed when the BLM needs to use roads under the
jurisdiction of the Forest Service. The Forest Supervisor shall issue the license
agreement subject to the conditions needed to protect the road and natural resources.
Construction of temporary spurs from the existing road can also be included in the
license agreement.
When the licensee has nearly completed using the road under the license, the using
agency will notify the issuing agency that use is nearly completed. This will give the
issuing agency an opportunity to inspect the road to be sure that all conditions in the
license have been met before the licensee removes equipment from the area.
c. Transferring Jurisdiction. If it is mutually agreed upon that a transferring of the
jurisdiction of an existing road is needed, either party may acquire a permanent
easement from the other party by following the procedures in Section V of the May
20, 1980, agreement and using Exhibit C, the Right-of-Way Reservation.
R3 SUPPLEMENT 5400-2009-1
EFFECTIVE DATE: 01/15/2009
DURATION: This supplement is effective until superseded or removed.
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The Forest Supervisor or the BLM District Manager as indicated in Section V
initiates the application for this transfer.
Regional Forester approval is needed to transfer a road to the BLM. The Forest
Supervisor should send in the request from the BLM with recommendations to the
Regional Forester for review and approval. If approved, the Regional Forester will
execute the Right-of-Way Reservation.
2. New Road Construction. The same principles as in item 1.c. will be followed when a
new road is to be constructed by one agency on the other agency’s property. Assure compliance
with the National Environmental Policy Act (NEPA) for any road construction project on
National Forest System land.
3. Road Improvement. If one agency desires to improve a road that will remain under
the other agency’s jurisdiction, the procedure indicated in item 1.b. will be followed.
The Forest Supervisor may approve the applications for road improvement by using Exhibit D of
the May 20, 1980 agreement.
Title approval is not required for easements acquired from the BLM, as title remains with the
United States in any jurisdiction transfer.
5465.2 – Bureau of Indian Affairs. The Act of February 5, 1948, P.L. 407 (62 Stat. 17),
empowers the Secretary of Interior to grant rights-of-way for all purposes across certain lands of
tribes, communities, nations or individual Indians. Procedures to follow under the Act of
February 5, 1948, are contained in 25 CFR, part 161. When a right-of-way is needed across
Indian lands, the Forest Supervisor should contact the Bureau of Indian Affairs (BIA) office
having jurisdiction for instructions on how to proceed.
In most cases, the steps in applying for a right-of-way across Indian lands will include the
following:
1. Secure permission to enter the land to make a preliminary location survey by meeting
with the tribal council if the land to be crossed is tribal land; or with the landowner if the land
has been allotted to an individual Indian. Permission must be in writing in a form acceptable to
the BIA Superintendent of the reservation involved. Approval across tribal land is usually a
resolution by the tribal council in predetermined form. See Exhibit 01, a sample format for use
on allotted Indian lands.
2. Submit a formal application (Exhibit 02) for permission to survey to the BIA
Superintendent of the Indian lands involved including the following:
a. A copy of the written consent of the tribal council or the landowner.
b. A description of the proposed project.
R3 SUPPLEMENT 5400-2009-1
EFFECTIVE DATE: 01/15/2009
DURATION: This supplement is effective until superseded or removed.
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FSM 5400 - LANDOWNERSHIP
CHAPTER 5460 – RIGHTS-OF-WAY ACQUISITION
Note: The requirement in 25 CFR 161.4 for satisfactory evidence of the good faith
and financial responsibility of the applicant by either a check, money order, or surety
bond should be waived for an application from the United States Government.
3. The BIA Superintendent will provide written consent to survey or an explanation of
why consent cannot be given.
4. After survey completion, obtain written permission from the tribal council or
landowners for permission for the BIA Superintendent to grant the requested easement.
Permission is granted either by a resolution by the tribal council or a letter from the landowner.
5. Send the following documents to the Regional Forester for transmittal to the Assistant
Regional Attorney for legal review.
a. Draft application (Exhibit 03).
b. Original and two copies of permission or authorization to grant easement from the
tribal council or landowners.
c. One reproducible and four copies of the right-of-way plat showing:
(1) Engineer’s Affidavit (Exhibit 04).
(2) Applicant’s Certificate (Exhibit 05).
6. The application with above listed documents returned to the Forest Supervisor for
submission to the proper BIA Superintendent.
When Indian lands within Region 3 are involved, consent of all the fee interest holders is usually
required. Part or all of the landowners may refuse to grant permission to survey or execute a
right-of-way deed. This usually results in an impasse since most Indian lands in Region 3 are not
subject to eminent domain. Further, acquisition of such rights-of-way generally involves old
treaties between the United States government and Indian tribes, Department of Interior
regulations, title action on the land by the Bureau of Indian Affairs and, commonly, many
interest holders. Consequently, those cases usually become very involved. Accordingly, the
assistance of the Assistant Regional Attorney should be requested when problems cannot be
resolved with the interest holders or the local BIA Superintendent’s office.
R3 SUPPLEMENT 5400-2009-1
EFFECTIVE DATE: 01/15/2009
DURATION: This supplement is effective until superseded or removed.
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FSM 5400 - LANDOWNERSHIP
CHAPTER 5460 – RIGHTS-OF-WAY ACQUISITION
5465.2 – Exhibit 01
UNITED STATES
DEPARTMENT OF THE INTERIOR
BUREAU OF INDIAN AFFAIRS
CONSENT OF OWNERS TO GRANT RIGHT-OF-WAY
_______________________________ Agency, _________________________, 20__, Allotment
No. _________________, Allottee _________________________________________________
_______________________________________________________________. The undersigned
owner(s) of said land hereby gives permission to make surveys (1/ and to the granting) of a
_______________________________________ right-of-way thereover, as contemplated by the
application of ______________________________________________ (1/ on the payment of a
negotiated monetary consideration in the amount of $______________ for the rights granted and
severance damages or the appraised fair market value of the rights and severance damages as
determined by the Secretary, whichever is greater).
Other terms or comments:
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
_________________________________
Witnesses:
Owner(s):
_____________________________
________________________________
_____________________________
________________________________
_____________________________
________________________________
_____________________________
________________________________
_____________________________________________________________________
1/ An application for permission to survey and an application for grant of right-of-way may be
combined into one form where the landowners may consent to the survey and grant.
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CHAPTER 5460 – RIGHTS-OF-WAY ACQUISITION
5465.2 – Exhibit 02
APPLICATION FOR PERMISSION TO
SURVEY FOR RIGHT-OF-WAY
I, _______________________________, Forest Supervisor, ____________________ National
Forest, acting through the Forest Service, Department of Agriculture, on behalf of the UNITED
STATES OF AMERICA, having a place of business at
________________________________________________, hereby files an application with the
Bureau of Indian Affairs, pursuant to the terms and provisions of the Act of February 5, 1948 (62
Stat. 17; 25 U.S.C. 323), and to the regulations of the Department of the Interior contained in
Title 25, Code of Federal Regulations, Part 161, for permission to survey a right-of-way for the
following purposes and reasons:
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
__________________________________________
Across the following described Indian lands:
IN WITNESS WHEREOF, ________________________________________________ has
caused this instrument to be executed this ____________ day of _____________, 20__.
___________________________
WITNESS
_______________________________
FOREST SUPERVISOR
___________________________
WITNESS
________________ National Forest
R3 SUPPLEMENT 5400-2009-1
EFFECTIVE DATE: 01/15/2009
DURATION: This supplement is effective until superseded or removed.
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5465.2 – Exhibit 03
APPLICATION FOR GRANT OF RIGHT-OF-WAY
I, ____________________________, Forest Supervisor, _______________________ National
Forest, acting through the Forest Service, Department of Agriculture, on behalf of the UNITED
STATES OF AMERICA, having a place of business at ________________________________,
hereby files an application with the Bureau of Indian Affairs, pursuant to the terms and
provisions of the Act of February 5, 1948 (62 Stat. 17; 25 U.S.C. 323), and to the regulations of
the Department of the Interior contained in Title 25, Code of Federal Regulations, Part 161, for
the grant of a right-of-way for the following purposes and reasons:
______________________________________________________________________________
_____________________________________________________________________________.
Across the following described Indian land:
Said right-of-way to be approximately _______ in length, ______ in width, and _____________,
more particularly described and shown on the map of definite location to be attached and made a
part hereof.
The applicant understands and hereby expressly agrees to the following stipulations:
1. ___________________________________________________________________________
____________________________________________________________________.
2. ___________________________________________________________________________
____________________________________________________________________.
3. ___________________________________________________________________________
____________________________________________________________________.
IN WITNESS WHEREOF, ___________________________________________has caused this
instrument to be executed this ____________ day of ________________, 20__.
_______________________________
WITNESS
_____________________________
FOREST SUPERVISOR
_______________________________
WITNESS
_________________National Forest
R3 SUPPLEMENT 5400-2009-1
EFFECTIVE DATE: 01/15/2009
DURATION: This supplement is effective until superseded or removed.
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5465.2 – Exhibit 04
ENGINEER’S AFFADAVIT
STATE OF _______________)
ss
COUNTY OF_____________)
__________________________________________, being first duly sworn, deposes and states
that (he/she) is by occupation a _________________________, employed by the USDA Forest
Service; that the survey was made by (him/her) (or under his/her direction); that (he/she) has
examined the field notes of the survey for ___________________________________ right-ofway as described and shown on this map; that this map was prepared under (his/her) direction
from said field notes; and that said right-of-way is _____________ miles in length beginning at
______________ and ending at ______________ as accurately located on this map.
______________________________
Title
Subscribed and sworn to before me this _______ day of _________________, 20____.
______________________________
Notary Public
My commission expires: ______________________
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5465.2 – Exhibit 05
APPLICANT’S CERTIFICATE
I, ____________________________________, do hereby certify that I am the Supervisor of the
_______________________________ National Forest, hereinafter designated the applicant; that
___________________________, who subscribed to the foregoing affidavit, is employed by the
applicant as an Engineer and that he/she was directed by the applicant to survey the location of
the __________________________ right-of-way and to prepare this map; that the location of the
said right-of-way, _____________ miles in length beginning at _______________ and ending at
___________________, is accurately represented on this map, that such survey as represented on
this map has been adopted by the applicant as the definite location of the right-of-way thereby
shown; and that the map has been prepared to be filed for the approval of the Secretary of the
Interior or his duly authorized representative as part of the application for said right-of-way to be
granted the applicant, its successors and assigns, with the right to construct, maintain, and repair
improvements, thereon and thereover, for such purposes, and with the further right in the
applicant, its successors and assigns, to transfer this right-of-way by assignment, grant, or
otherwise.
____________________
DATE
_______________________________
APPLICANT
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CHAPTER 5460 – RIGHTS-OF-WAY ACQUISITION
5465.4 – States and 5465.5 - Local Government Units and Agencies. Right-of-way acquisitions
across state lands will be handled in the same manner as across private lands. The Forest
Supervisor will prepare applications for rights-of-way across state lands for the signature of the
Regional Director of Lands and Minerals. Each State has its own policy for granting right-ofway easements.
State of Arizona. Easements are granted by the Arizona State Land Department. For
rights-of-way acquisition information, the Forest Supervisor should contact the Right-of-Way
Section, Arizona State Land Department, 1624 West Adams, Phoenix, Arizona, 85007, (602)
255-1704.
State of New Mexico. Easements are granted by the State of New Mexico, acting by and
through its Commissioner of Public Lands. For rights-of-way acquisition information, the Forest
Supervisor should contact the Commissioner of Public Lands, P.O. Box 1148, Santa Fe, New
Mexico, 87504-1148.
In addition to the requirements of FSM 5465.4 and 5465.5, these guidelines establish procedures
within the Southwestern Region to cover the right-of-way acquisition of easements and/or road
authorizations across state, county, city, and other local agency owned or administered lands.
The following shall be considered by the Forest Supervisor:
1. Ensure that the objective to access National Forest Lands is met;
2. Government agencies are involved on both sides of the right-of-way acquisition;
3. State or local government units and agencies normally determine a right-of-way value
for their easements and/or road authorizations using sound business practices similar
to the approaches used by the Forest Service for its special uses. These approaches
are standard practice throughout government.
4. The Forests are not required to appraise these right-of-way acquisitions.
Nevertheless, it is advised that coordination is made with the Regional Appraiser, to
assure that the grantor’s base prices are developed using sound business practices.
In reference to number 4, the Forest Supervisor is authorized to approve an offer to pay for the
right-of-way authorization up to the value of the land to be occupied by the authorization. If it is
suspected the base price would exceed the value of the land, then the authority to approve
remains with the Regional Forester. In this instance, a request to the Regional Forester needs to
include:
1. Anticipated value of the land to be occupied by the authorization. No formal appraisal
is required;
2. Amount requested by the grantor; and
R3 SUPPLEMENT 5400-2009-1
EFFECTIVE DATE: 01/15/2009
DURATION: This supplement is effective until superseded or removed.
5460
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FSM 5400 - LANDOWNERSHIP
CHAPTER 5460 – RIGHTS-OF-WAY ACQUISITION
3. Reasons behind the grantor’s request.
In every instance, obtain help from the Office of the General Counsel in developing acceptable
conveyance documents.