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FOREST SERVICE MANUAL
DENVER, CO
FSM 5400 - LANDOWNERSHIP
R2 Supplement No. 5400-93-7
Effective March 19, 1993
POSTING NOTICE: Supplements to this title are numbered consecutively. Post by
document name. Remove entire document and replace with this supplement.
Retain this transmittal as the first page of this document. The last supplement to
this Manual was Supplement 5400-93-6 to 5450.
Page Code
5460.3--1 through 5460.3--2
5460.43a
5461.03a through 5461.03b
5461.04c--1 through 5461.04c--2
5461.2
5461.64 through 5462.43d--2
5462.44a
5462.71
5467-1 through 5467-5
Superseded Sheets
1
1
2
1
1
5
1
1
3
Supplements Covered
R2 Supplement 80, 8/87 (if still present)
R2 Supplement 81, 08/87
R2 Supplement 64, 02/81
R2 Supplement 75, 06/84
R2 Supplement 71, 08/83
R2 Supplement 61, 04/80
R2 Supplement 58, 08/79
R2 Supplement 49, 08/76
Document Name
5460
New
(Number of Pages)
6
Digest: Changes in numbering and titling to conform with the white pages and
make chapter electronic. Updated material. Direction has not been changed unless
specified below.
Chapter - 5460 - New text corresponds with amendment text located in the National
Information Center. 5460.3 - Adds criteria for target accomplishment.
ELIZABETH ESTILL
Regional Forester
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5460.3 - Policy.
8. Rights-of-way for the Forest Transportation System will be acquired on a
planned basis to support program activities needed to implement the Forest Land
and Resource Management Plan and to acquire high priority case needs identified
through completion of a Travel Management Assessment, a part of the Forest
planning process.
Annually, each Forest Supervisor should develop a fiscal year right-of-way
procurement schedule and progress record. This schedule should, as a minimum,
program:
a. Continuing work on carryover cases from the preceding fiscal year;
b. New cases, identified in pertinent Forest Land and Resource
Management Plan appendices, Travel Management Assessments and/or
Acquisition Needs Inventories, that are targeted for acquisition within
the next three years;
c. High priority cases needed to enable legitimate use of existing interior
and exterior Forest Development Road and Trail segments that cross
private landownership for which the United States has no or inadequate
easements of record.
d. Those cases for which opportunities may suddenly arise or for cases
where opportunities must be taken before a property changes ownership
when such change in ownership appears eminent.
The schedule should be based on those cases identified in pertinent appendices to
the Forest Land and Resource Management Plan. Because Forest Plans were
developed using existing inventories, or some Forests lacked an inventory of rightof-way cases, a comprehensive right-of-way needs inventory, particularly a priority
listing, shall be developed from a Travel Management Assessment. Until such an
inventory is developed, annual procurement schedules will include cases generated
by functional resource action plans and changes in landownership and/or owner
attitudes.
9. Right-of-way targets will be counted as accomplished when one of the
following occur:
a. When an easement is acquired by the Forest Service by voluntary
conveyance and the case is received by the Regional Forester for
processing for Title Opinion. The Director of Lands will determine that
the case report appears sufficiently complete for submission to the
Regional Attorney.
b. When new public access is affirmed by a public road agency of the
State , County or a local government under State law through acquisition
of an easement, through condemnation or through a declaration
procedure and the right-of-way has been effectively eliminated from the
Forest inventory of needed rights-of-way. A grant acquired in the name
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of the United States by another Federal agency will also count towards
target accomplishment.
c. When access for the public is obtained through acquisition of a tract of
land (land exchange, donation, purchase, Small Tracts Act interchange)
and the need for acquisition of a right-of-way has been effectively
eliminated from the Forest inventory as a result.
There may be other unique circumstances for which the Regional Forester may
grant target accomplishment on a case-by-case basis. Acquisition of temporary or
limited easements which permit administrative use or use by a contractor, etc., are
not counted towards target accomplishment. The acquisition only counts toward
targets when the needed right-of-way is eliminated from the Forest inventory of
rights-of-way required for unrestricted public access.
The validating of existing access rights through research and legal opinion does not
result in the acquisition of additional property interests by the United States. The
Director of Lands will keep a record of such validation efforts and note their
completion but will not credit such validations toward target accomplishment. It is
appropriate to expend right-of-way acquisition funds on such validations in a
prudent manner.
5460.4 - Responsibility.
5460.44 - Forest Supervisor. Forest Supervisors are authorized, subject to
provisions under FSM 5460.41, 5460.42, and 5460.43, to acquire needed rights-ofway.
1. Forest Supervisors are authorized to approve the purchase of road and trail
right-of-way easements provided acquisition is by voluntary conveyance and the
written offer in settlement including any overpayment, does not exceed $2,500 in
excess of the appraised value of the easement.
2. The minimum price to be offered in settlement shall be not less than the
approved appraised estimate of "just compensation". The offer in settlement may
include a subjectively derived "overpayment" based upon concerns expressed by the
prospective grantor and owners of similar neighborhood properties if adjustments to
support such concerns cannot be quantified using an objective valuation process.
Overpayments (e.g., compensation for intangible factors such as increased risk for
vandalism, livestock disturbance, trespass and littering by the public, dust
attributable to public land use and for loss of solitude, etc.) must be justified by a
Decision Analysis which indicates that such a decision is in the public interest. The
analysis will include a history of negotiations, basis for anticipated cost of
condemnation, probable effect of condemnation on public relations, and probable
effect of the higher approved price on the purchase of future easements in the
affected area. This Decision Analysis must be signed by the Forest Supervisor. The
anticipated cost and probable effects of condemnation will not be used to support
overpayment.
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3. When an offer in settlement (including any overpayment) exceeds $2,500,
the Forest Supervisor will forward the Appraisal Report and Decision Analysis to
the Regional Forester for processing by the Director of Lands.
4. After a written offer in settlement has been tendered, rejected, and the
landowner either refuses to counter or his counter offer is found to not be in the
public interest, the Forest Supervisor may decide to recommend condemnation.
Following approval by the Regional Forester, the Forest Supervisor must then
tender a final written offer in settlement under threat of condemnation. Costs
associated with the preparation of condemnation actions and litigation may be used
to support this discretionary final offer in settlement under threat of condemnation.
Any proposed offer in settlement under threat of condemnation which exceeds the
Fair Market Value of the Gross Easement Acreage must be approved by the
Regional Forester.
5. When the Offer in Settlement Under Threat of Condemnation is tendered to
the landowner, the negotiator will tactfully inform the landowner that:
If this offer is rejected, the Supervisor will recommend condemnation;
When the Forest Service files the Complaint and Declaration of Taking, the amount
to be deposited with the District Court and the amount to which witnesses for the
United States will testify, is the amount established as just compensation by the
approved appraisal and not what was previously offered in settlement or is now
being Offered in settlement under threat of condemnation;
In condemnation actions, landowners may incur expenses associated wit h attorney
and expert witness fees; and
That in condemnation actions, landowners risk receiving an award of less than the
Agency's Offer in Settlement Under Threat of Condemnation.
Examples of written offers in settlement and offer in settlement under threat of
condemnation are shown in FSH 5409.17, Chapter 10, Section 14.4, R2 Supplement.
5461.1 - Rights-of-Way for Roads on the Forest Development Road System. Rightsof-way must be wide enough to accommodate all planned construction or
reconstruction and all foreseeable management and maintenance needs. Deed
language (FSH 5409.17, Chapter 10) providing for additional width for cuts and fills
is meant to cover only unforeseen changes or occurrences. Therefore, it is extremely
important to have a good facility design so that a right-of-way of adequate width
can be obtained. In deciding the width needed, it is often helpful to ask, "If the land
owner were to fence the right-of-way limits, would we be able to manage and
maintain the facility without damage to the fences or encroachment on private
property beyond the fences?"
Normally, the following minimum widths should be acquired:
Roads: 60 feet
Trails: 20 feet
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A narrower right-of-way may be acquired for roads, trails, and stock driveways if
the landowner insists and if it is consistent with the facility design and with
foreseeable management needs.
5461.3 - Prescriptive Rights-of-Way. Use of another's property by a road or trail,
such use being open and notorious, adverse and continuous for the statutory period
established under State law establishes a prescriptive easement or prescriptive
right-of-way. Such rights accrue and are vested under State law. Such rights vest
in public road agencies and not in the United States. The Forest Service can use
such prescriptive rights as would any other member of the public where there is
conclusive evidence of the existence of such rights.
Statutory periods and conditions of use for establishment of prescriptive rights in
States within Region 2 are as follows:
Statutory State
Period of Use
Colorado
Kansas
Nebraska
South Dakota
20 Years
15 Years
10 Years
20 Years
Wyoming
10 Years
20 Years
Other Conditions
Road must be maintained and
kept in repair.
State Highways actually used,
traveled or fenced.
County highways actually
constructed and substantially
maintained by the County.
Forests shall be guided by the following in regard to prescriptive rights-of-way.
Discuss with the public road agency the exercising of their prescriptive rights:
(a) Where it appears eminent that the public right of use on a needed road will be challenged, obtain
an adequate right-of-way through purchase or condemnation.
(b) If reconstruction or betterment of a prescriptive road is planned, obtain an easement through
purchase or condemnation. In Colorado, check all county roads claimed for primary and secondary
uses under Colorado Statutes 43-2-110, CRS 1953, referred to as the plat filing law. Other States may
have other statutes which are equally applicable.
If the prescriptive right is vested in a county by due process of law, (i.e. the above
1953 Colorado plat filing law) secure a resolution of specific width from the County
Commissioners. If the specific width is adequate to support planned road
reconstruction or betterment, execute an appropriate Forest Development Road
Cooperative Agreement (FSM 7715) with the county to cover jointly planned
development and operation of the road system.
In certain cases a county may not recognize any ownership of a right-of-way
previously acquired by plat entry under State statute. Upon such written or verbal
denial of ownership by the County Commissioners, request an easement transfer or
agreement to reassign the road right-of-way to the United States. The type of
easement or agreement required will depend upon the limitations which may have
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been attached to the right-of-way when the county acquired it and/or other
encumbrances attached subsequent to the acquisition. The Lands Staff will request
a review by the Regional Attorney as particular cases arise involving legal issues. If
a county has relinquished their right-of-way through "vacation proceedings" under
State statute and the right-of-way is still needed, obtain an easement from the
current landowner through purchase or condemnation.
(c) When acquiring an easement which includes an existing road with established prescriptive rights,
compensation normally is limited to the value of the additional width taken. Damages and
enhancement of values, if any, to be considered in such cases are those that accrue to the additional
width outside of the prescriptive rights-of-way. A deed description, however, includes the full width
of the right-of-way, including the existing road.
5465 - RIGHTS-OF-WAY FROM PUBLIC AGENCIES.
5465.4 - States. Title approval requirements for rights-of-way being acquired across
State land are nearly identical to those for private land. Accordingly, the usual title
documents, including a title commitment or equivalent instrument, shall be
submitted for review.