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Fitzgerald Living Trust v. U.S.


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The Fitzgeralds, who own property in Arizona that is completely surrounded by the Sitgreaves National Forest, filed suit under the Quiet Title Act[1] and the Administrative Procedure Act[2] (APA), alleging they held preexisting access rights not subject to the Federal Land Policy Management Act’s[3] (FLPMA) permitting process.  The Fitzgeralds further asserted that the FLPMA easement across federal lands, proposed by the United States Forest Service (USFS), which was revocable and required annual payments, was arbitrary and capricious.  The district court granted summary judgment in favor of the government, and the Fitzgeralds appealed to the Ninth Circuit.  The Ninth Circuit affirmed.        

The Fitzgeralds bought the twenty-eight acre property in 1983 for use as a residence and as a base for grazing operations in the surrounding national forest.  The tract, known as the “O’Haco Cabins Ranch,” was originally granted to another landowner in 1920 under the Homestead Act.[4]  That transfer granted the land “with appurtenances thereof.”[5]  When the Fitzgeralds bought the property, USFS restricted motorized access to the land on to the primary route, named Forest Development Road 56B (FDR 56B).  In 1986, USFS informed the Fitzgeralds that since the road was no longer in public use, and agency policy was to have all uses permited, to continue use of the road, they had to apply for a FLPMA “special use permit.”  The Fitzgeralds refused to accept the permit, maintaining their access rights were not subject to permitting.  After the Fitzgeralds also rejected a FLPMA “private road easement,” offered under FLPMA, the USFS closed FDR 56B to all motorized traffic and the Chief of the Forest Service upheld the closure decision.

The Fitzgeralds filed an initial lawsuit in 1996 challenging the USFS road closure decision and seeking to quiet title in a common law easement over FDR 56B.[6]  That case was dismissed as moot when the easement proposed by USFS expired.  In 2000, the Fitzgeralds filed a new application to use FDR 56B, and USFS in turn drafted a thirty-year “private road easement” with several conditions.  Under the proposed easement, the Fitzgeralds were to pay fair market value of $114.31 per year and USFS reserved the right to suspend or revoke the easement.  The Fitzgeralds rejected USFS’s proposal and filed suit in federal district court, alleging they were entitled to use FDR 56B under three easements:  (1) a common law easement by necessity, (2) an implied easement under the Homestead Act, and (3) an express easement under the 1920 patent grant.  The Fitzgeralds also contended that USFS issuance of the FLPMA easement was arbitrary and capricious because it restricted their (1) common law right of access, (2) rights under the Alaska National Interest Lands Conservation Act[7] (ANILCA), and (3) right to a permanent easement under the National Forest Roads and Trails Act[8] (NFRTA).  The district court granted summary judgment for USFS, finding that the agency had ability under FLPMA and ANILCA to restrict a private landowner’s access through national forest land.  The court also found the FLPMA easement’s terms reasonable and that USFS did not abuse its discretion by offering the FLPMA easement instead of a NFRTA easement.

The Ninth Circuit reviews de novo appeals from summary judgment.[9]  The court determines the existence of genuine issues of material fact and decides whether the district court correctly applied appropriate substantive law, while viewing the evidence in the light most favorable to the nonmoving party.[10] 

The Ninth Circuit held that the Fitzgeralds’ common law and implied access rights were, as the district court found, preempted by statute (FLPMA and ANILCA) and even if the Fitzgeralds possessed an express easement it was subject to USFS regulations.[11]  USFS authority to regulate the use of FDR 56B, the court noted, persisted regardless of any common law easement held by the Fitzgeralds.  However, the court reasoned, the reasonableness of the USFS regulations depended on whether the Fitzgeralds held a common law easement.  The court relied on its holding in Skranak v. Castenada, where USFS was required by its own regulations[12] to address common law easement claims advanced in FLPMA permit applications.[13]  The Ninth Circuit read Skranak to stand for the principle that “the existence of a preexisting easement. . . is relevant to [USFS’s] issuance of a statutory easement under FLPMA,”  and under that rubric assessed the Fitzgeralds’ three easement claims.[14] 

The Ninth Circuit first addressed the Fitzgeralds’ claim of an implied easement under the Homestead Act’s provision allowing settlers “to enter . . . unappropriated public lands” to establish homesteads.[15]  While acknowledging that the Homestead Act did indeed allow inholders to access their lands by passing over government lands, the Ninth Circuit concluded that such access did not amount to an implied easement.[16]  The court noted that custom impelled Congress to recognize access to public lands by implied license, but recognition of customary use did not confer vested rights.[17]  The court concluded the Homestead Act merely sanctioned customary use of public lands.  The Ninth Circuit rejected as unsubstantiated the Fitzgeralds’ argument that the implied license morphed into an easement in 1920 when the former landowner secured a patent to the land.  Finally, the court pointed out that had the Homestead Act granted vested access rights across public lands, statutes like the 1897 Organic Act[18] and ANILCA would not need to provide for public access over federal land as they do.

The court next addressed the Fitzgeralds’ claim of a common law easement by necessity over FDR 56B.  The Fitzgeralds cited several cases to show that such a claim may be made against the United States, none of which the Ninth Circuit found persuasive because the cases did not reach the question, and were not binding on the issue.[19]Without deciding whether such an easement can be obtained against the United States, the Ninth Circuit held the Fitzgeralds failed to meet the common law elements of easement by necessity.[20]  Further, such easements are extinguished when the necessity disappears.  It follows, the court reasoned, that statutory rights of access established by the 1897 Organic Act, FLPMA, and ANILCA destroy any easement of necessity. 

Lastly, the Ninth Circuit addressed the Fitzgeralds’ claim of an express easement over FDR 56B based on the 1920 patent grant of the land “with appurtenances thereof.”  The Fitzgeralds argued this language explicitly granted as an “appurtenance” an easement through the national forest, because without the easement, the land would have no value.  The Ninth Circuit looked to the Tenth Circuit’s opinion in United States v. Jenks, which rejected that very argument.[21]  While the word “appurtenance” carries with it existing easements, it does not create new ones,[22] and generally, intent to grant easements must be manifest and specific. The Ninth Circuit held the language here lacked the requisite intent and specificity to convey an easement over the trail that later became FDR 56B. 

Upon refusing in turn all three of the Fitzgeralds’ easement claims, the Ninth Circuit held that the USFS regulations regarding fair market value and revocation were reasonable.  The annual fee was reasonable because the Fitzgeralds did not have a preexisting easement over the road, and were therefore not paying a fee for something they already owned.  The court noted that the Fitzgeralds had not challenged the calculation of the fee or the amount of the fee in determining that the fee was reasonable.  The court also held that the condition in the USFS easement providing for potential suspension, revocation, or termination were reasonable.  That condition, the court concluded, was consistent with USFS discretion under FLPMA to restrict the “duration . . . transfer or assignment, and termination” of a FLPMA easement.[23] 

Finally, the court quickly disposed of the Fitzgeralds’ claim that USFS abused its discretion by not providing them with a NFRTA easement.  NFRTA provides for free easements to applicants participating in the construction and maintenance of the national forest road system.[24]  Because the Fitzgeralds were not using FDR 56B to assist USFS in managing the forest, the court held that USFS was within its discretion to refuse a NFRTA easement.

The Ninth Circuit held the FLPMA easement offered by USFS to the Fitzgeralds was reasonable given they held no preexisting statutory or common law easements over the road.             

[1] 28 U.S.C. § 2409a (2000).

[2] Administrative Procedure Act, 5 U.S.C. §§ 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5362, 7521 (2000).

[3] Federal Land Policy and Management Act of 1976, 43 U.S.C. §§ 1701-1785 (2000).

[4] Act of May 20, 1862, ch. 75, 12 Stat. 392-93 (1862) (codified at 43 U.S.C. §§ 161-284) (repealed 1976).

[5] Fitzgerald Living Trust v. United States, 460 F.3d 1259, 1261 (9th Cir. 2006).

[6] Fitzgerald v. United States, 932 F. Supp. 1195 (D. Ariz. 1996), vacated, No. CIV-94-0518-PCT-PRG (D. Ariz. July 19, 1999).

[7] Alaska National Interest Lands Conservation Act, 16 U.S.C. § 3210(a) (2000).

[8] National Forest Roads and Trails Act, 16 U.S.C. §§ 532-538 (2000).

[9] Buono v. Norton, 371 F.3d 543, 545 (9th Cir. 2004).

[10] Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004).

[11] Adams v. United States (Adams II), 255 F.3d 787, 794 (9th Cir. 2001).

[12] See 36 C.F.R § 251.114(f) (YEAR) (directing the authorizing officer to ensure the landowner has “demonstrated a lack of any existing rights or routes of access available by deed or under State or common law”). 

[13] 425 F.3d 1213, 1221 (9th Cir. 2005).  To avoid conflict with the holding in Adams v. United States (Adams I), that access under ANILCA is determined regardless of preexisting easements, the court in Skranak held that deference to the USFS regulation was appropriate because Adams I did not go so far as to declare ANILCA unambiguous.  Skranak, 425 F.3d at 1220.

[14] Fitzgerald, 460 F.3d at 1264.

[15] Act of May 20, 1862, 43 U.S.C. § 161 (repealed 1976).

[16] The Ninth Circuit found persuasive the Tenth Circuit’s holding in United States v. Jenks that settlers’ implied license to access their property via public lands was not an implied easement.  129 F.3d 1348, 1354 (10th Cir. 1997).   

[17] See Burford v. Houtz, 133 U.S. 320, 326 (1890) (describing customary access to public lands in the nineteenth century).  See also Light v. United States, 220 U.S. 523, 535 (1911) (clarifying that use of public lands does not confer to the public any vested rights).

[18] Organic Administration Act of 1897, ch. 2, 30 Stat. 11, 34­-36 (codified as amended at 16 U.S.C. §§ 473-482 (2000).

[19] See United States v. Dunn, 478 F.2d 443 (9th Cir. 1973) (stating that the Government did not claim that an easement by necessity could not be had); United States v. Jenks, 129 F.3d 1348, 1353 (10th Cir. 1997) (showing that the court did not reach the question of an easement by necessity under the Homestead Act).

[20] An easement by necessity arises where (1) the title to two parcels was held by a single owner, (2) the unity of title was severed by a conveyance of one of the parcels, and (3) at the time of severance, the easement was necessary for the owner of the severed parcel to use his property.  Mont. Wilderness Ass’n v. U.S. Forest Serv., 496 F. Supp. 880, 885 (D. Mont. 1980).

[21] 129 F.3d at 1355.

[22] Humphreys v. McKissock, 140 U.S. 304, 314 (1891).

[23] Federal Land Policy and Management Act of 1976, 43 U.S.C. § 1764(c) (2000). 

[24] H.R. Rep. No. 88-1920 (1964).

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