Rights-of-Way Across National Forests

Rights-of-Way Across National Forests

T h e A ct o f June 4, 1897, does not grant a right o f access to ow ners o f land surrounded
by national forests, other than actual settlers, and the Secretary o f A griculture has
discretionary authority to deny such access unless a right otherw ise exists.

T h e com m on law doctrine o f easem ent by necessity does not apply to land ow ned by the
federal governm ent, but a right o f access may be implied from the term s of a federal
land grant in some circum stances. N o statutes currently modify any such implied right
found to exist.
Absent a prior existing access right, the Secretary o f A griculture may deny “adequate
access” to land within a national forest w ilderness area, but must offer a land exchange
as indemnity.

June 23, 1980

T he Secretary of A g r ic u l t u r e

This replies to your letter of September 18,
M y D e a r M r. S e c r e ta r y :
1979, requesting my opinion on several questions concerning access
rights of private owners of land located within the boundaries of the
national forests. Your letter poses the following questions:
(1) Whether the Organic Act of June 4, 1897,1 grants to private
landowners,2 other than actual settlers, a right of ingress to and egress
from their properties located within the exterior boundaries of the
national forests, or whether you may deny such access;
(2) W hether private landowners with property located within the
exterior boundaries of the national forests have a right-of-way across
national forest lands by implied easement or easement by necessity
enforceable against the federal government; and, if so, whether this
right-of-way is limited to those instances in which the United States by
its conveyance created a situation in which nonfederal lands are sur­
rounded by public lands;
(3) Whether, if a right-of-way exists across national forests, it has
been modified by:
(a) The Organic Act of June 4, 1897, 16 U.S.C. § 478;
(b) The Wilderness Act, § 5(a), 16 U.S.C. § 1134(a);
(c) The Act of October 13, 1964, 16 U.S.C. §§ 532-538;

1A c t o f J u n e 4. 1897, c h . 2. § 1. 30 S tat. 36 (c o d ifie d at 16 U .S .C . § 478).
- A s used in th is o p in io n , th e te rm “ p riv a te la n d o w n e rs " re fe rs to all n o n fe d e ra l la n d o w n e rs unless
o th e r w is e in d icated .

30
 (d) The Montana Wilderness Study Act of 1977, § 3, 16 U.S.C.
§ 1132 note; or
(e) Any other statute; and
(4) Whether § 5(a) of the Wilderness Act, 16 U.S.C. § 1134(a), au­
thorizes you to deny access and offer as indemnity an exchange of
national forest land for private land, or whether the private landowner
may insist on a right of access.
I conclude, first, that the Organic Act of June 4, 1897, does not grant
a right of access to owners of land surrounded by national forests, other
than actual settlers, and that you have discretionary authority to deny
such access, provided that a right of access does not otherwise exist. Of
course, access cannot be denied arbitrarily.
Second, in my opinion, the common law doctrine of easement by
necessity does not apply to land owned by the federal government. A
right of access may be implied from the terms of a federal land grant
only if Congress intended to grant the right. This intent may be show
from the circumstances surrounding the grant, including the purpose
for which it was made.
Third, none of the statutes you have asked us to consider, nor any
others that we have found, would modify such a right in any case in
which it is found to exist.
Fourth, I conclude that, absent a prior existing access right, you may
deny “adequate access” under the Wilderness Act, but you must offer a
land exchange as indemnity.

I.

Your first question is whether Congress has given private inholders 3
a statutory right of ingress and egress with respect to their property,
including a right to build roads. Congress clearly has the power to
grant such statutory rights.4 The question is whether it has done so.
Your department concludes that the Organic Act of June 4, 1897,
grants a right of access, including a right to build roads, to all owners

3 A n “ in h o ld e r" is a la n d o w n e r w h o se p ro p e rty is c o m p le te ly s u rro u n d e d b y p r o p e r ty o w n e d b y
th e U n ited S tates. A g ain , as used in th is o p in io n th e te rm “ p riv a te inholder*’ re fe rs to all n o n fe d e ra l
in h o ld ers.
4 T h e p o w e r to c o n tro l p u b lic lan d s is g ra n te d to C o n g re s s by th e C o n stitu tio n :
T h e C o n g re s s shall h a v e P o w e r to D isp o se o f an d m ake all n ee d fu l R u les an d
R e g u la tio n s re s p e c tin g th e T e r r ito r y o r o th e r p ro p e rty b e lo n g in g to th e U n ite d
S ta l e s .. . .
U .S. C o n st.. A rt. IV , § 3, cl. 2. T h is c o m p re h e n s iv e co n g re s s io n a l a u th o rity o v e r p u b lic lan d s in c lu d e s
th e p o w e r to p re s c rib e th e tim es, c o n d itio n s , an d m o d e o f tra n sfe r (U n ite d S ta tes v. G ratiot. 39 U .S . (14
P et.) 526, 537-38 (1840)); to d e c la re th e e ffec t o f title e m a n a tin g fro m th e U n ite d S ta te s ( B a g n ell v.
Broderick, 38 U .S. (13 P e t.) 436, 4 5 0 (1839)); a n d to p re v e n t u n la w fu l o c c u p a tio n o f p u b lic p r o p e r ly
(C a m fie ld v. U nited Stoles. 167 U .S. 518, 525 (1897)). In K leppe v. N e w M exico. 426 U .S. 529, 539
(1976), th e C o u rt sta te d : “ (W jh ile th e fu rth e st re a c h e s o f p o w e r g ra n te d b y th e P r o p e r ty C la u se h a v e
n o t yet been d efin ite ly re so lv e d , w e h a v e re p e a te d ly o b s e rv e d th a t th e p o w e r o v e r p u b lic la n d s th u s
e n tru ste d to C o n g re s s is w ith o u t lim ita tio n ."

31
of land surrounded by national forest reserves. Section 478, the codifi­
cation of § 1 of the Act, provides:
Nothing in sections 473 to 478, 479 to 482 and 551 of this
title shall be construed as prohibiting the egress or ingress
of actual settlers residing within the boundaries of na­
tional forests, or from crossing the same to and from their
property or homes; and such wagon roads and other im­
provements may be constructed thereon as may be neces­
sary to reach their homes and to utilize their property
under such rules and regulations as may be prescribed by
the Secretary of Agriculture. Nor shall anything in such
sections prohibit any person from entering upon such na­
tional forests for all proper and lawful purposes, including
that of prospecting, locating, and developing the mineral
resources thereof. Such persons must comply with the
rules and regulations covering such national forests.
In 1962, Attorney General Kennedy was asked by the Secretary of
Agriculture for his opinion on the meaning of this statute. See 42 Op.
A tt’y Gen. 127 (1962). Prior to 1962, your department interpreted the
first sentence of § 478 as granting a right of access to all owners of land
surrounded by a national forest. It reasoned that the term “ingress and
egress” included the construction of wagon roads, and that the term
“actual settlers” included any person or corporation owning property
within the boundaries of national forests. As a result, private landown­
ers, including lumber corporations, were considered to have a statutory
right to build logging roads. Id. at 130. Attorney General Kennedy
opined that the term “actual settlers” includes original settlers who
reside on the land, and excludes corporations and other business enti­
ties.5 He further concluded that the Secretary of Agriculture has discre­
tionary authority to impose a reciprocity requirement on requests by
inholders, other than actual settlers, to use existing roads or to build
new roads within national forests. Id. at 142-45.
You have advised us that, notwithstanding the 1962 opinion, your
department has continued to maintain that § 478 creates a right of
access for all private inholders. This interpretation, you have informed
us, has been based upon the second sentence of § 478, which was not
directly addressed in the 1962 opinion. My review of the reasoning set
forth in that earlier opinion, as well as my analysis of § 478 and its
legislative history, convinces me that no such access right exists.
The 1962 opinion analyzed § 478 by dividing it into the following
three categories: (1) ingress and egress of actual settlers; (2) construc­

5 B etw e en th e e x tre m e s o f th e o rig in a l s e ttle r a n d c o r p o ra tio n s o r b usiness e n titie s a re in te rm e d ia ry
ty p e s o f p ro p e rty o w n e rs su c h as h e irs o r assigns o f an a c tu a l s e ttle r. T h e 1962 o p in io n d id n o t
c o n s id e r w h e th e r th o se in te rm e d ia ry p ro p e r ty o w n e rs a re “ a c tu a l s e ttle rs ” w ith in th e m e an in g o f th e
A c t. 42 O p . A tt’y G en . 127, 138 (1962).

32
 tion of wagon roads and other improvements by actual settlers; and (3)
entry upon the national forest for all proper and lawful purposes by any
person. Id. at 127, 138-39. We are concerned here only with the third
category because you inquire as to the rights of landowners other than
actual settlers. In this category, “entry upon” may be subdivided into
entry by mere ingress and egress, in particular the use of existing roads,
and entry requiring construction of roads. Section 478 provides that
any entry upon the forest reserve by any person is subject to the rules
and regulations covering such national forests. The question now pre­
sented, therefore, is whether the Secretary’s regulations may, in appro­
priate cases, include denial of the requested entry.
To determine correctly the scope of rights protected by the 1897
Act, it is necessary to study carefully the language of the Act itself, and
its legislative history. As the legislative history is fully summarized in
the 1962 opinion, I note only the aspects particularly relevant here. At
the outset, it is helpful to review the sequence of events which led to
the passage of the Act. During the 1800’s the public entered freely
upon federal land, and Congress, although it did not provide specific
legal authority for most uses of the public domain, made no serious
attempt to halt such uses. See generally G. Robinson, The Forest Serv­
ice 2-5 (1978); Clawson & Held, The Federal Lands 46 (1957). This
tacit approval constituted an open invitation to the public to avail itself
of the federal land without specific authorization. Most people assumed
that the United States was a temporary titleholder and that the land
would eventually pass into private ownership. See R. Robbins, Our
Landed Heritage: The Public Domain, 1776-1970, 5-6 (1976). The
public land laws of the era, including preemption laws,6 homestead
laws,7 and mining laws,8 presumed unimpeded access to the public
domain.
This policy of unimpeded access was recognized by the Supreme
Court in Buford v. Houtz, 133 U.S. 320, 326 (1890), a case in which the
Court considered the complaints of owners of alternate odd-numbered
sections of land that sheepowners were damaging their land by driving

6T h e A c t o f M ay 29, 1830, 4 S tal. 4 2 0 -2 1 , first g ra n te d p re e m p tio n rig h ts to settlers. U n d e r its
term s, an y p erso n w h o h ad se ttle d on th e p u b lic d o m a in an d h ad c u ltiv a te d a tra c t o f land w as
a u th o riz e d to p u rc h a s e an y n u m b e r o f a c re s up to a m axim um o f 160 a c re s u p o n p ay in g to th e U n ite d
S ta te s a m inim um p ric e fo r Che land.
7 T h e first h o m e stead a c t w as passed in 1862. A c t o f M ay 20, 1862, 12 S ta t. 3 9 2 -9 3 . It p ro v id e d th a t
c e rta in p erso n s c o u ld e n te r u n a p p ro p ria te d p u b lic lan d s an d , u p o n satisfy in g c e rta in c o n d itio n s, o b ta in
a G o v e rn m e n t p a te n t th e re fo r.
8T h e M in in g L a w o f 1866 (A c t o f J u ly 26, 1866, c h . 262, 14 S tat. 251) o p e n e d m in eral d e p o sits o n
p u b lic lands to e x p lo ra tio n , claim , and o c c u p a tio n . T h e o n ly sp ecific re fe re n c e to rig h ts-o f-w ay
ap p e a re d in § 8, w h ic h g ra n te d a rig h t-o f-w a y fo r th e c o n s tru c tio n o f h ig h w a y s o v e r p u b lic lan d s n ot
re se rv e d fo r public uses. T h e M in eral L o c a tio n L a w o f 1872 (A c t o f M ay 10, 1872, c h . 752, 17 S tat.
9 1 -9 6 ) d id not m e n tio n ac cess ac ro ss th e p u b lic d o m a in . F ro m th e o u tse t, h o w e v e r, fed era l m in in g
la w s h av e b een c o n s tru e d as an in v itatio n to e n te r, d is c o v e r, an d lo c a te claim s u p o n p u b lic lands n ot
w ith d ra w n o r reserv ed . See, e.g.. Union O il Co. v. S m ith , 249 U.S. 337, 3 4 6 -4 7 (1919); U n ite d S ta te s v.
Carlile. 67 l.D . 417, 421 (1960). See generally J. L o n e rg a n , A ccess to In te rm in g led M in e ra l Deposits,
M in in g C la im s a n d Private L a n d s Across S u rro u n d in g Public D om ain a n d N a tio n a l Forest L a n d s. 8 L an d
& W a te r L. R ev. 124 (1973).

33
sheep across it to reach the even-numbered sections of the public
domain. The Court denied plaintiffs’ request for an injunction with the
following explanation:
We are of opinion that there is an implied license, grow­
ing out of the custom of nearly a hundred years, that the
public lands of the United States . . . shall be free to the
people who seek to use them where they are left open
and unenclosed, and no act of government forbids this
use. . ..
The whole system of the control of the public lands of
the United States as it had been conducted by the G ov­
ernment, under acts of Congress, shows a liberality in
regard to their use which has been uniform and
remarkable.
133 U.S. at 326-27. The Court refused to allow the complainants, under
the pretense of owning a small portion of a tract of land, to obtain
control over the entire tract and thereby deny defendants their privi­
lege to use the public domain. 133 U.S. at 322. See also, Broder v. Water
Co., 101 U.S. 274, 276 (1879) (Court noted conduct of government
encouraging development of mines and construction of canals and
ditches on public domain); Forbes v. Gracey, 94 U.S. 762 (1876) (Court
noted tacit consent to enter upon the public lands for the purposes of
mining); Atchison v. Peterson, 87 U.S. (20 Wall.) 507 (1874) (Court noted
“silent acquiescence” to the general occupation of the public lands for
mining).
In the late 19th century, efforts expanded to protect the Nation’s
natural resources from the results of what were perceived as overly
generous land-use policies. See Robbins, supra, at 301-24. In 1891, the
Congress passed a law authorizing the President to reserve forest lands
from the public domain. Act of March 3, 1891, ch. 561, §24, 26 Stat.
1103. One provision of this Act, § 24, later known as the Forest Re­
serve Act of 1891, was added as an amendment by the conference
committee.9 The amended bill was considered in the closing days of the
Congress on an oral presentation of its terms, no printed version being
available. It was approved with little debate.10 The status of these forest

9 S e c tio n 24 p ro v id e d :
[T ]h e P re sid e n t o f th e U n ite d S ta te s m a y , fro m tim e to tim e, set a p a rt an d re se rv e , in
a n y S ta te o r T e r rito r y h a v in g p u b lic land b e a rin g forests, a n y part- o f th e p u b lic lands
w h o lly o r in p a rt c o v e re d w ith tim b e r o r u n d e rg ro w th , w h e th e r o f c o m m e rc ia l valu e
o r n o t, as p u b lic re s e rv a tio n s , an d th e P resid en t shall, by p u b lic p ro c la m a tio n , d e c la re
th e esta b lish m e n t o f su ch re s e rv a tio n s an d th e lim its th e reo f.
l0S o m e S e n a to rs ex p ressed c o n c e rn ab o u t not k n o w in g e x a c tly w h a t w as in .t h e r e p o rt, b u t th e
m a jo rity felt th a t in th e c lo sin g d a y s o f th e session “ th e re has g o t to be s o m e th in g ta k en fo r g ra n te d o r
else th e p u b lic b usiness c a n n o t g o fo rw a rd as it should.*’ 22 C o n g . R ec. 3 5 4 6 -4 7 (1891). T h e b rie f
H o u se d e b a te a p p e a rs at 22 C o n g . R ec. 3 6 1 3 -1 6 (1891).

34
reserves was not defined, nor were guidelines provided for the manage­
ment of the reserves.
On February 22, 1897, President Cleveland, pursuant to the 1891
Act, issued proclamations placing approximately 20 million acres of
public land in forest reserves. Presidential Proclamations Nos. 19-31,
Feb. 22, 1897, 29 Stat. 893-912. Within the boundaries of the reserves
were villages, patented mining claims, homestead claims of actual set­
tlers and other developments. See 30 Cong. Rec. 901-02 (1897). Each of
the proclamations contained the following admonition: “Warning is
hereby expressly given to all persons not to enter or make settlement
upon the tract of land reserved by this proclamation.” See, e.g., 29 Stat.
894 (1897). The proclamations also prohibited the general use of timber
on the reserves, and jeopardized other theretofore legitimate activities
of persons living within or near the reserves.
Congressmen from states affected by the proclamations expressed
outrage at what they considered the President’s hasty and ill-advised
action. 30 Cong. Rec. 902 (1897). This reaction culminated in the
passage of an amendment to the Sundry Civil Expense Appropriation
Act, 30 Stat. 36 (1897). This amendment was designed to solve the
“difficulties surrounding these forest reservations” (id. at 900) and to
provide for “administering the forest so reserved” (id. at 909).11 Senator
Carter of Montana explained that the amendment was offered “not for
the purpose of benefitting any particular individual or class of individ­
uals, but for the purpose of permitting existing communities in the
United States to enjoy the privileges which have ordinarily been ac­
corded to the pioneer settlers on the frontier everywhere.” Id. at 902.
Other Senators also criticized the provision prohibiting entry or settle­
ment upon the reserves. Id. at 910-11. Senator Allison of Iowa stated:
“[I]f segregations are made I think every interest existing at the time,
however remote it may be, should be protected.” Id. at 911 (emphasis
added). The House debate on the amendment indicates that the con­
gressmen also were concerned about preserving existing uses of the
forest reserves. Id. at 1007-13 (remarks of Representatives Castle,
Knowles, Lacy, and DeVries).12
The bill was referred to a conference committee, which reported the
bill without changes in or comments upon the access section. Id. at
1242-43. During the Senate debate on the conference report, some of
the same western Senators on whose behalf the amendment was intro­
duced sought to change the clause “actual settlers residing within the
boundaries of national forests” to “bona fide settlers or owners within a
reservation.” Id. at 1278-81. Senator White explained that the provision

“ T h e a m e n d m e n t te m p o ra rily re s to re d th e w ith d ra w n lands to th e p u b lic d o m a in b y su sp e n d in g
th e o p e ra tio n o f th e p re sid e n tia l p ro c la m a tio n s fo r a p p ro x im a te ly o n e year. 30 C o n g . R ec. 8 9 9 -9 0 0
(1897). I t also clarifie d th e P re s id e n t’s a u th o rity to re v o k e , m odify, o r su sp e n d s u c h p ro c la m a tio n s.
,2 F o r a c o m p le te d iscu ssio n o f th is le g islativ e h isto ry , see 42 O p . A lt’y G en . 127, 135-38 (1962).

35
 as drafted did not adequately protect all persons who had acquired title
in fee from the government. Id. at 1278. The amendment was defeated.
Id. at 1285. Opponents of the amendment emphasized that there was no
intent to deprive any person of access to his property, and that “what­
ever rights have been acquired as respects the public lands under the
public land laws are reserved and preserved.” Id. at 1283. It was noted
that entry upon the forests was subject to the rules and regulations of
the Secretary of Interior (who then had this administrative authority)
and that such rules would not likely prevent access to a person’s home.
Id. at 1280 (remarks of Senator Berry). Notwithstanding the concession
that the bill was “imperfect,” the conference report was agreed to. It
was pointed out that further amendment would cause substantial delay
and that any evils could be corrected by subsequent legislation. Id. at
1282—83. The House adopted the conference report without debate on
this provision. Id. at 1397-401.
This legislative history demonstrates that the effect of the second
sentence of § 478 is to protect whatever rights and licenses with regard
to the public domain existed prior to the reservation. We interpret the
provision as a congressional declaration that the establishment of forest
reserves would not alter the long-standing policy of allowing
unimpeded access to the public land or interfere with the rights of
persons then using the land, not as an affirmative grant of a broad right
of entry to all persons. The express language of the statute provides
that nothing in the act shall be construed to prohibit certain activities.
The language grants no rights not already in existence. See Robbins,
supra, at 323; John Ise, The United States Forest Policy 140 (1920).
The protection of “lawful” and “proper” entry upon the reserves
cannot be construed to limit congressional authority to regulate such
entry. No vested right to use the public domain for a particular purpose
arises from the government’s mere acquiescence in such use. In Light v.
United States, 220 U.S. 523 (1911), the Court wrote:
[WJithout passing a statute, or taking any affirmative
action on the subject, the United States suffered its public
domain to be used for such purposes. There thus grew up
a sort of implied license that these lands, thus left open,
might be used so long as the Government did not cancel
its tacit consent. Buford v. Houtz, 133 U.S. 326. Its failure
to object, however, did not confer any vested right on the
complainant, nor did it deprive the United States of the
power of recalling any implied license under which the
land had been used for private purposes.
Id. at 535. See also The Yosemite Valley Case, 82 U.S. (15 Wall.) 77
(1872); Frisbie v. Whitney, 76 U.S. (9 Wall.) 187, 194 (1869).
Section 478 clearly subjects entry upon the national forests to reason­
able regulation by the Secretary. Prior to the enactment of the Federal
36
 Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C.
§§ 1701-1782, and its repeal of § 2 of the Act of June 4, 1897, 16 U.S.C.
§ 551, insofar as the latter section applied to the issuance of rights-of-
way through public lands, the Secretary was required to read § 478 and
§551 together. United States v. Grimaud, 220 U.S. 506, 515 (1911).
Section 551 provides that the Secretary shall “make such rules and
regulations and establish such service as will insure the objects of such
reservations, namely, to regulate their occupancy and use and to pre­
serve the forests thereon from destruction . . . This section was held
to confer upon the Secretary a “broad scope of regulation” intended to
“be effective.” See 42 Op. A tt’y Gen. 127, 140, citing Chicago Mil. & St.
P. Ry. v. United States, 218 F. 288, 298 (9th Cir. 1914), affd, 244 U.S.
358 (1917); Shannon v. United States, 160 F. 870, 873 (9th Cir. 1908). In
Grimaud, the Court stated that the Secretary “is required to make
provisions to protect the forest reserves from depredation and harmful
uses.” 220 U.S. at 552. The Secretary’s authority to grant rights-of-way
across national forest lands now is based on 16 U.S.C. §§ 532-538, and
FLPMA, 43 U.S.C. §§ 1761-1771. Both statutes authorize the Secretary
to protect the forest lands.13
This interpretation is consistent with the 1962 opinion of the A ttor­
ney G eneral.14 His review of the legislative history of §478 disclosed a
legislative desire to protect explicitly only the rights of ingress and
egress of actual settlers. 42 Op. A tt’y Gen. 127, 138. He found that
entry upon the national forests by all other persons is subject to your
rules and regulations covering the forests and discussed the scope of
your regulatory authority as follows:

,3 S ectio n 504 o f F L P M A . 43 U .S .C . § 1764, d ire c ts ih e S e c re ta ry to issue re g u la tio n s w ith re s p e c t
to th e te rm s an d c o n d itio n s o f th e rig h ts-o f-w a y . S e c tio n 505, 43 U .S .C . § 1765, req u ires, in ter alia, th a t
e a c h rig h t-o f-w a y p erm it c o n ta in te rm s an d c o n d itio n s w h ic h w ill " p r o te c t th e en v iro n m en t.* ' “ p ro te c t
F e d e ra l p r o p e rty ,“ an d “ o th e rw ise p ro te c t th e p u b lic in terest in th e lan d s tra v e rse d b y th e rig h ts-o f-
w a y o r a d ja c e n t thereto.** T h e A c t o f O c to b e r 13, 1964, 16 U .S .C . §§ 5 3 2 -5 3 8 , w h ic h g e n e ra lly
c o n c e rn s th e c o n s tru c tio n an d m a in te n a n c e o f a sy stem o f ro a d s w ith in th e n atio n al fo rests, a u th o riz e s
th e S e c re ta ry to g ra n t p erm a n e n t o r te m p o ra ry ea se m e n ts “ u n d e r su ch re g u la tio n s as he m ay p r e ­
sc rib e ." 16 U .S.C . § 533.
u In 1964, in resp o n se to th e A tto rn e y G e n e ra l’s 1962 o p in io n . C o n g re s s passed le g islatio n .g iv in g
th e S e c re ta ry th e a u th o rity to g ra n t p erm a n e n t o r te m p o ra ry ea se m e n ts o v e r la n d s m a n ag ed b y th e
D e p a rtm e n t o f A g ric u ltu re . P ub. L. N o. 8 8 -657. § 2 , 78 S tat. 1089 (1964). T h e c o m m itte e re p o rts o f
b o th th e H o u se a n d th e S en ate in d ic a te th a t C o n g re s s u n d e rs to o d th e A tto r n e y G e n e r a l's o p in io n to
h o ld th a t § 478 w as “ n o t to be c o n s tru e d as a s ta tu to ry g u a ra n te e o f ac cess to p riv a te lan d s w ith in th e
n atio n al fo re sts." S. R ep. N o. 1174, 88th C o n g ., 2d Sess. 4 (1964); H .R . R ep. N o . 1920. 88 th C o n g ., 2d
Sess. 4 (1964). In th e S en ate r e p o rt, th e c o m m itte e stated :
It sh o u ld b e ex p ressly n o te d th a t th is le g islatio n is in te n d e d n e ith e r to affirm n o r to
a b ro g a te th e A tto rn e y G e n e ra l’s in te rp re ta tio n o f th e ac t o f J u n e 4. 1897 (30 S tat. 36,
16 U .S .C . 478), w ith resp ect to th e act*s as s u ra n c e o r lack o f assu ran ce, c o n c e rn in g
a c cess to p riv a te lands ac ro s s n atio n al fo rest lands. H o w e v e r, th e p r e d ic ta b le efTect o f
th is legislation w ill be to m inim ize th e lik elih o o d o f litig a tio n b e tw e e n th e U n ited
S ta te s an d p riv a te la n d o w n e rs d e sig n e d to test a p p lic a tio n s o f th e A tto r n e y G e n e r a l’s
in te rp re ta tio n o f th e ac t o f J u n e 4, 1897. T h is le g islatio n w ill p ro v id e to m o st o w n e rs
o f p riv a te land a s a tisfa c to ry a lte rn a tiv e to s ta tu to ry a s s u ra n c e o f a c c e s s to an d fro m
th e ir lands. T h e c o m m itte e th e re fo re re c o m m e n d s e n a c tm e n t o f th e ac t as a m en d ed .
A m e n d m e n ts w h ic h w o u ld h a v e c re a te d a s ta tu to r y rig h t o f a c cess w e re re je c te d b o th in c o m m itte e
(S. R ep . N o. 1174, at 8) an d on th e S e n a te flo o r. 110 C o n g . R ec. 16.413-15 (1964).

37
 As the Supreme Court pointed out in United States v.
Grimaud, 220 U.S. 506, 516-17, it is your function to
determine what private use of the national forests in any
given case is consistent with the purposes sought to be
attained by the statute. The imposition of harsh and oner­
ous requirements not related to the benefit received or to
your general responsibility to preserve and manage the
national forests, might well constitute an abuse of
discretion.
42 Op. A tt’y Gen. at 147.
Your department argues that it has a long-standing policy that the
Secretary is without discretion to deny access under § 478, and that a
change in this policy would have a drastic effect on the well-established
expectations of landowners within the national forests. It is a familiar
principle that interpretations made contemporaneously with the enact­
ment of a statute and consistently followed for a long period are
entitled to great weight, particularly if they have been relied on by the
public. See Zuber v. Allen, 396 U.S. 168, 192-93 (1969); Alaska S.S. Co.
v. United States, 290 U.S. 256, 262 (1933); Norwegian Nitrogen Products
Co. v. United States, 288 U.S. 294, 315 (1933). Correspondingly, when
an agency’s interpretation has been neither consistent nor long-standing,
the weight given it diminishes accordingly. See Southeastern Community
College v. Davis, 422 U.S. 397, 411-12 (1979); United Housing Founda­
tion, Inc. v. Forman, 421 U.S. 837, 858-59 n.25 (1975). Prior to 1962,
your department relied on the first sentence of § 478 to find the same
rights you now find in the second sentence. This 1962 revision of the
department’s interpretation occurred almost 70 years after enactment of
the statute.15
In any case, to the extent that my judgment is governed by the
customary rules of statutory construction, I am guided by the overrid­
ing rule that the statute, and not the agency’s interpretation, is conclu­
sive. See, e.g., VolksWagenwerk v. Federal Maritime Commission, 390
U.S. 261, 272 (1968). Additionally, I am persuaded by the legislative
history and by the common sense rule that legislative history disclosing
Congress’ intent is entitled to more weight than a conflicting adminis­
trative interpretation and must control. See Norwegian Nitrogen Products
Co. v. United States, 288 U.S. 294, 315 (1933); Sutherland, Statutes and
Statutory Construction §49.04 (1973 & Supp. 1975).
In sum, I conclude that § 478 does not grant access rights to private
inholders other than actual settlers. In my opinion, absent a right of
access otherwise granted to the landowner by Congress, you may deny
requested access if such denial will protect the public interest in the

14 In S oriano v. U nited States. 494 F .2 d 681, 683 (9 th C ir. 1974), th e c o u r t d e c lin e d to g iv e sp ecial
d e fe re n c e to a re g u la tio n p ro m u lg a te d m o re th a n 100 y ea rs a fte r e n a c tm e n t o f th e statu te.

38
 land to be traversed. Because you may not arbitrarily deny access to
private landowners, I do not foresee that this interpretation will have a
drastic effect on their expectations.

II.

Your second question is whether an inholder has an easement by
necessity or other implied easement across national forest land. The
conclusion in Part I (that § 478 does not grant a right of access to
private property across national forest reserves, and that, absent an
access right otherwise guaranteed to a landowner by Congress, § 478
allows denial of access) renders apparent the importance of this
question.
In the 1962 opinion, the Attorney General stated that whether an
easement by necessity lies against the government is a complex and
controversial question. While he concluded that it need not be decided
at that time, the Attorney General nonetheless offered his view that
such an easement does not exist over public lands. 42 Op. A tt’y Gen.
127, 148. It is also my view that the common law doctrine of easement
by necessity does not apply to congressional disposition of the public
domain. This does not mean, however, that access cannot otherwise be
implied. In my opinion, access may be implied if it is necessary to
effectuate the purpose for which the land was granted.
The doctrine of easement by necessity is a common law property
concept that was recently described by the Supreme Court as follows:
“Where a private landowner conveys to another individual a portion of
his lands in a certain area and retains the rest, it is presumed at common
law that the grantor has reserved an easement to pass over the granted
property if such passage is necessary to reach the retained property.”
Leo Sheep Co. v. United States, 440 U.S. 668, 679 (1979).16 Authoritative
treatises on property law identify three basic prerequisites to the cre­
ation of an easement by necessity.17 First, the titles to the two tracts in
question at some time must have been held by one person. This is the
unity-of-title requirement. Second, the unity of title must have been
severed by a conveyance of one of the tracts. Third, the easement must
be necessary in order for the owner of the dominant tenement to use
his land. This necessity must exist both at the time of the severance of
title and at the time of application for the exercise of the easement.18

16 In L eo Sheep, th e C o u rt c o n s id e re d th e q u estio n w h e th e r th e U n ite d S ta te s h ad re s e rv e d an
ea sem en t to pass o v e r lan d s w h ic h h ad passed fro m fed eral o w n e rs h ip . Y o u r in q u iry , c o n v e rs e ly , is
w h e th e r th e U nited S tates g ra n te d an e a sem en t to a fed era l land g ra n te e to pass o v e r re ta in e d la n d s to
re a c h th e c o n v e y e d p r o p e rty . T h e L eo S heep ca se is discu ssed in fra at p ag es 19-20, n o te 28.
17 S ee generally 3 P o w e ll on R eal P r o p e rty § 4 1 0 (1979); 2 T h o m p s o n o n R ea l P r o p e r ty § 363, at
4 2 4 -2 7 (1961 & S u p p . 1978); 3 T iffa n y , L a w o f R eal P ro p e r ty § 7 9 3 (3 d ed . 1939 S u p p . 1979);
C o m m e n t, E asem ents B y W ay o f N ecessity Across F ederal L ands, 35 W ash. L . R ev . 105, 107 (1960).
18 C o u rts h a v e e m p h a siz e d v a rio u s fa c to rs in ap p ly in g th is d o c trin e . T h e R e s ta te m e n t o f P r o p e r ty
§ 4 7 6 , lists so m e o f th e se facto rs:
Continued

39
See 3 Powell on Real Property §410, at 34-59 to 34-60 (1979);
Simonton, Ways By Necessity, 25 Colum. L. Rev. 571, 573-79 (1925).
Whether this doctrine applies to the government has not been resolved.
Courts and commentators have differed.19
To determine whether the doctrine applies to property of the federal
government, it is necessary to determine what law controls. Here fed­
eral law must control. The Constitution vests in Congress alone author­
ity to dispose of and make needful rules concerning the public domain.
U.S. Const., Art. IV, § 3, cl. 2. As I have noted earlier in this opinion,
this power is vested in Congress “without limitation.” United States v.
Gratiot, 39 U.S. (14 Pet.) 526, 537 (1840). See also Kleppe v. New
Mexico, 426 U.S. 529, 536 (1976); United States v. San Francisco, 310
U.S. 16, 29-30 (1940). The construction of grants by the United States
has been held to be a federal, not a state, question. United States v.
Oregon, 295 U.S. 1, 27-28 (1935), Packer v. Bird, 137 U.S. 661, 669
(1891).20 With regard to implying an easement across land which the
United States still holds in trust for the public, therefore, federal law
must control. Utah Power & Light Co. v. United States, 243 U.S. 389,
404 (1917).21 Federal property can be made subject to state law only
when congressional authorization is clear and unambiguous. See EPA v.
California ex rel. State Water Resources Control Bd., 426 U.S. 200, 211
(1976); Kleppe v. New Mexico, 426 U.S. 529, 536 (1976).

(a) w h e th e r (he c la im a n t is th e c o n v e y o r o r th e c o n v e y e e ; .
(b) th e te rm s o f th e c o n v e y a n c e :
(c) th e c o n s id e ra tio n g iv e n fo r it:
(d ) w h e th e r th e claim is m a d e ag a in st a s im u lta n e o u s c o n v e y e e ;
(e) th e ex ten t o f th e necessity ;
( 0 w h e th e r r e c ip ro c a l b en e fits resu lt to th e c o n v e y o r o r c o n v e y e e ;
(g) th e m a n n e r o f use o f th e land b e fo re c o n v e y a n c e :
(h) th e ex ten t to w h ic h p rio r use w as k n o w n .
19See. e.g.. U nited S ta tes v. D u n n . 478 F .2 d 443 (9 th C ir. 1973) (h o ld in g , w ith o n e ju d g e d issen tin g ,
th a t th e d o c tr in e is ap p lic a b le ); S u n S tuds. Inc.. 83 I.D . 518 (1976) (h o ld in g th a t th e d o c tr in e is n o t
a p p lic a b le ). S o m e c o m m e n ta to rs s ta te th a t w a y s o f n e c e ssity d o n o t a rise ag a in st th e s o v ereig n . 2 G .
T h o m p s o n , C o m m e n ta rie s o n th e L a w o f R eal P r o p e rty § 362, at 417 (1961); Jo n e s o n E a se m e n ts
§ 3 0 1 , at 247 (1898). O th e rs c o n c lu d e th a t th e d o c trin e sh o u ld be a p p lic a b le . 3 P o w e ll o n R eal
P r o p e rty § 4 1 0 at 34-73 to 3 4 -7 4 (1979); 3 T iffan y , L a w o f R eal P r o p e r ty § 793 (3d ed . 1939).
20 W h e n , h o w e v e r, th e la n d h as passed fro m fed era l o w n e rs h ip , it b e c o m e s su b je c t to th e la w s o f
th e s ta te in w h ic h it is lo c a te d . S ee O regon e x rel. S ta te L a n d Bd. v. C orvallis S a n d <& G ravel Co.. 429
U .S. 363, 372 (1977). It fo llo w s, th e re fo re , th a t w h e re title to b o th a d o m in a n t a n d se rv ie n t te n em en t
h as p assed fro m fed era l o w n e rs h ip , th e q u e stio n w h e th e r th e u n ity -o f-title re q u ire m e n t is satisfied by
p rio r g o v e rn m e n t o w n e rs h ip is a q u e stio n o f s ta te law . S ta te c o u r ts h a v e re a c h e d d iffe rin g o p in io n s o n
th is q u e stio n . C o u rts in C a lifo rn ia , F lo rid a , In d ia n a, O k la h o m a , T e n n e sse e , an d T e x a s h a v e c o n c lu d e d
th a t u n ity o f title c a n n o t be b ased on p rio r g o v e rn m e n t o w n e rs h ip . B u lly H ill Copper M in in g &
S m e ltin g Co. v. Bruson. 4 C al. A p p . 180, 87 P. 237, 238 (1906); G uess v. Azar. 57 So. 2d 443, 444 (F la.
1952); C o n tin en ta l E nterprises Inc. v. Cain, 296 N .E .2 d 170, 171 (In d . 1973); D u d ley v. Meggs, 153 P.
1121, 1122 (O k la. 1915); Pearne v. C oal C reek M in. & M fg. Co.. 9 0 T e n n . 619, 6 2 7 -2 8 , 18 S .W . 4 0 2 -0 4
(1891); S ta te v. B lack Bros.. 116 T e x . 615, 6 2 9 -3 0 , 297 S .W . 213, 2 1 8 -1 9 (1927). C o u r ts in A rk an sas,
M issouri a n d M o n ta n a h a v e re a c h e d th e o p p o s ite c o n c lu s io n . A rka n sa s S ta te H ig h w a y C o m m 'n v.
M arshall. 485 S .W .2d 740, 743 (A rk . 1972); S n y d e r v. Warford, 11 M o . 513, 514 (1848); Violet v.
M artin. 62 M o n t. 335, 205 P. 221, 223 (1922).
21 T h e ru le s a d o p tin g s ta te law to d e te rm in e w h a t rip a ria n rig h ts p ass in a fe d e ra l g r a n t a r e n ot
a p p lic a b le to th e q u e s tio n o f w a y s a c ro s s fed era l land. U tah Power & L ig h t Co. v. U n ited States. 243
U .S. 389, 411 (1917). See O regon e x rel. S ta te L a n d Bd. v. Corvallis S a n d <£ G rave! Co.. 429 U .S . 363,
372 (1977); U nited S ta tes v. Oregon. 295 U .S. 1, 27 (1935); H a rd in v. Jordan. 140 U .S. 371 (1891).

40
 To determine what rights have passed under federal law, it is neces­
sary to interpret the statute disposing of the land.22 It is a recognized
principle that all federal grants must be construed in favor of the
government “lest they be enlarged to include more than what was
expressly included.” United States v. Grant River Dam Authority, 363
U.S. 229, 235 (1960); United States v. Union Pac. Ry., 353 U.S. 112, 116
(1957).23 In Pearsall v. Great No. Ry., 161 U.S. 646, 664 (1895), the
Court wrote: “Nothing is to be taken as conceded . . . but what is
given in unmistakeable terms, or by an implication equally clear. . . .”
These general rules must not be applied to defeat the intent of Con­
gress, however. The Supreme Court has stated that public grants are
“not to be construed as to defeat the intent of the legislature, or to
withhold what is given either expressly or by necessary or fair
implication. . . .” United States v. Denver & Rio Grande R.R., 150 U.S.
1, 14 (1893). In all cases, the intent of Congress must control. Id. See
also Missouri, K. & T. Ry. v. Kansas Pac. Ry., 97 U.S. 491, 497 (1878).
These rules dictate that if it is clear that Congress intended to grant
access, such access must be acknowledged, its scope consistent with the
purposes for which the grant was made.24 An implied easement defined
by the actual intent of Congress must be distinguished from an ease­
ment by necessity, which relies on a presumed intent of the parties.
There are no clear uniform rules for determining the scope of an
easement by necessity. In some cases, it has been held that the scope
includes whatever access is necessary for any reasonable, beneficial use
of the dominant tenement, not merely the use for which the grant was
made. See, e.g., New York Cent. R.R. v. Yarian, 219 Ind. 477, 39 N.E.2d
604, 606 (1942); Soltis v. Miller, 444 Pa. 357, 283 A.2d 369, 370-71
(1971); Meyers v. Dunn, 49 Conn. 71, 78 (1881); Whittier v. Winkley, 62
N.H. 338, 339-40 (1882); Jones on Easements § 323 (1898). Since the
common law doctrine is based on the presumed intent of the parties, its
operation may have the effect of disregarding or possibly frustrating the
intention of the grantor, absent express language in the conveyance
denying an easement. 2 G. Thompson, Law of Real Property § 362
(1961), citing Lord v. Sanchez, 136 Cal. App. 2d 704 289 P.2d 41 (1955);
Moore v. Indiana & Michigan Elec. Co., 299 Ind. 309, 95 N.E.2d 210
(1950). Thus, if the doctrine were allowed to operate where the G ov­
ernment is the grantor, the actual intent of Congress would, at the least,

23 W e n o te th a t y o u r d e p a rtm e n t, w ith o u l re a c h in g th e ea sem en t-b y -n e cessity issue, h as c o n c lu d e d
th a t an ex a m in atio n o f th e g ra n tin g s ta tu te is essential to d e te rm in in g a c cess rig h ts. S ee M e m o ra n d u m :
A c c e ss to S ta te an d P riv a te In h o ld in g s in N a tio n a l F o re s ts at 18, U .S. D e p t, o f A g ric u ltu r e (O c t. 31,
1979).
23 S ee also C a m fie ld v. U nited States, 167 U .S. 518, 52 4 -2 6 (1897); U n ited S ta te s v. C larke, 529 F .2 d
984, 986 (9 th C ir. 1976).
2*See C u rtin v. Benson. 222 U .S. 78, 86 (1911). In U nited States v. 9.947.71 Acres. 220 F. S u p p . 328,
331 (D . N ev . 1963), th e c o u rt re c o g n iz e d an im plied a c cess rig h t fo r m in in g p u rp o s e s w h e re a m in in g
claim o w n e r had to c ro s s p u b lic d o m a in to reac h his claim . C f A rizona v. C alifornia, 373 U .S. 546,
5 9 9 -6 0 0 (1963); W inters v. U nited States, 207 U .S. 564, 575-77 (1908). T h e se ca ses re c o g n iz e an im p lied
rese rv a tio n o f w a te r rig h ts fo r Indian reserv atio n s.

41
become irrelevant, and, in some cases, would be thwarted. Plainly, the
application of the common law doctrine would be inconsistent with the
established principles that the intent of Congress in disposing of federal
land must control, and that rights in government land cannot be pre­
sumed to pass by implication.25
The doctrine of easements by necessity was developed to settle
disputes between private parties, not disputes involving the federal
governm ent.26 The federal government has at one time held title to
over three-fourths of the territory of the United States; it today retains
title to approximately one-third of the nation’s land. One-Third of the
Nation’s Land: A Report to the President and to Congress by the
Public Land Law Review Comm’n, at 8 (1970). It holds property as
sovereign, as well as proprietor, and exercises power beyond that
which is available to a private party. Kleppe v. New Mexico, 426 U.S.
529, 539 (1976); Light v. United States, 220 U.S. 523, 536-37 (191 1).
Throughout its history, statutes have been enacted allowing access
across its land.27 It holds land in trust for all the people and in dispos­
ing of it is concerned with the public interest. Utah Power & Light Co.
v. United States, 243 U.S. 389, 409 (1917); Causey v. United States, 240
U.S. 399, 402 (1916). In Causey, the Court wrote that “the Government
in disposing of its public lands does not assume the attitude of mere
seller of real estate at its market value.” Id.
For these reasons, other doctrines applicable to private landowners
have been held inapplicable to the sovereign. In Jourdan v. Barrett, 45
U.S. (4 How.) 169, 184-85 (1846), the Supreme Court held that no
prescriptive rights may be obtained against the sovereign, and in Field
v. Seabury, 60 U.S. (19 How.) 323, 332-33 (1856), the Court held that
government patents may not be collaterally attacked as can grants from
a private party. In United States v. California, 332 U.S. 19 (1947), the

25 It is n o te w o n h y th a t sin ce th e A tto rn e y G e n e ra l o p in e d in 1962 th a t th e d o c tr in e o f ea se m e n ts by
n ec essity w as n o t e n fo rc e a b le ac ro s s fed era l land, C o n g re s s has n o t m o d ified th e rule. A lth o u g h this
g e n e ra lly is n o t s tro n g e v id e n c e w h e n th e re is no in d ic a tio n th a t C o n g re s s w as a w a re o f th e ru lin g
(Z u b e r v. A llen, 396 U .S. 168, 194 (1969)), it is m o re p e rs u a s iv e w h e n , as h e re , co n g re s s io n a l ac tio n
d ire c tly re su lte d from th e o p in io n . S e e n.14, supra. S ee generally B ean v. L ed m a r. 368 U .S. 403, 4 1 2 -1 3
(1962); U nited S ta tes v. M idw est O il Co.. 236 U .S. 459, 481 (1915).
26T h e d o c trin e has b een tra c e d to e a rly E n g lish o rig in s. S im o n to n , W ays o f N ecessity, 25 C o lu m . L.
R ev . 571, 57 2 -7 8 (1925). It u su ally has b een p re d ic a te d on p u b lic p o lic y fa v o rin g lan d u tiliz atio n an d a
p re s u m p tio n o f in ten t. 3 P o w e ll on R ea l P ro p e rty § 4 1 0 at 3 4 -5 9 to 3 4 -6 0 (1979).
21 See. e.g.. A c t o f M a rc h 3, 1875, ch . 252, § 1, 18 S tat. 482 (re p e a le d 1976) (rig h t o f w ay fo r
ra ilro ad s); A c t o f M a rc h 3, 1891, c h . 561, § 18 (re p e a le d 1976) ( rig h t o f w a y fo r irrig a tio n d itc h e s an d
c a n als); A c t o f Ja n . 21, 1895, ch. 37, § I (re p e a le d 1976) (rig h t o f w a y fo r tra m ro d s , ca n als, and
rese rv o irs); A c t o f J u ly 26, 1866, c h . 262, § 8, 14 S tat. 253 (re p e a le d 1976) (rig h t o f w ay fo r h ig h w ay s).
T h e s e s ta tu te s w e re re p e a le d by th e F e d e ra l L a n d P o lic y an d M an a g e m e n t A c t o f 1976 ( F L P M A ) ,
P u b . L. N o . 9 4 -5 7 9 , § § 5 0 1 -5 1 1 , 90 S tat. 2776-82 (co d ifie d at 43 U .S .C . § § 1 7 6 1 -1 7 7 1 ). F L P M A
p ro v id e s, w ith c e rta in e x c e p tio n s, th a t rig h ts o f w a y a c ro s s g o v e rn m e n t lan d c a n o n ly b e o b ta in e d as
p ro v id e d in th a t A c t. 43 U .S .C J770. G e n e ra l a n d c o m p re h e n s iv e le g islatio n , p re sc rib in g a c o u rs e o f
c o n d u c t to be p u rs u e d a n d th e p a rtie s an d th in g s a ffec ted , an d s p ecifically d e s c rib in g lim itatio n s an d
e x c e p tio n s , is in d ic a tiv e o f a le g isla tiv e in ten t th a t th e s ta tu te sh o u ld to ta lly s u p e rs e d e an d re p la c e th e
c o m m o n la w d e a lin g w ith th e s u b je c t m a tte r. Isbrandtsen Co. v. Johnson. 343 U .S. 779, 7 8 7 -8 8 (1952);
S n e e l v. R uppert, 541 P .2 d 1042 (W y o . 1978); J. S u th e rla n d , S ta tu te s an d S ta tu to ry C o n s tru c tio n
§ 50.05 (1973 & S u p p . 1978).

42
Court refused to hold that the federal government had forfeited by
laches or estoppel its interest in littoral property, stating: “The Govern­
ment, which holds its interests here as elsewhere in trust for all the
people, is not to be deprived of those interests by the ordinary court
rules designed particularly for private disputes over individually owned
pieces of property. . . Id. at 40.
These same reasons lead me to conclude, as did the Court in Leo
Sheep, that the doctrine of easements by necessity as applicable to
federal lands is “somewhat strained, and ultimately of little signifi­
cance” and that the “pertinent inquiry . . . is the intent of Congress.” 28
A grantee is entitled instead to reasonable access across government
land to use his property, for the purposes for which the land grant was
made, if such an access right either expressly or impliedly arises from
the act authorizing the land grant.29
To interpret correctly congressional intent underlying a statutory
land grant, it is necessary to look at the condition of the country when
the grant was made, as well as the declared purpose of the grant. Leo
Sheep Co. v. United States, 440 U.S. 668, 682 (1979); Winona & St. Paul
R.R. v. Barney, 113 U.S. 618, 625 (1885); Platt v. Union Pacif. R.R., 99
U.S. 48, 64 (1878). In Superior Oil Co. v. United States, 353 F.2d 34 (9th
Cir. 1965), for example, the court looked to the purpose of the grant
and concluded that the scope of the implied access was not broad
enough to include the type of entry sought. The plaintiff oil company
was a lessee of a religious mission which had received a land patent to
facilitate and encourage its activities among the Indians. The land in
question was surrounded by the Hopi Reservation, which the United
States held in trust for the Indians. The issue on appeal was whether

28In L eo Sheep Co. v. U nited States. 440 U .S. 668 (1979), th e C o u rt, in h o ld in g th a t th e fed eral
g o v e rn m e n t d o e s not h a v e a re s e rv e d e a sem en t by n ec essity ac ro s s th e lan d o f its g ra n te e o r its
g r a n te e 's su ccesso r, w ro te :
F irst o f all, w h a te v e r rig h t o f p assag e a p riv a te la n d o w n e r m ig h t h av e , it is n o t at all
c le a r th a t it w o u ld in c lu d e th e rig h t to c o n s tru c t a ro a d fo r p u b lic a c cess to a
re c re a tio n a l a rea . M o re im p o rta n tly , th e ea sem en t is n o t a c tu a lly a m a tte r o f n ec essity
in th is ca se b e c a u se th e G o v e rn m e n t has th e p o w e r o f em in en t d o m a in . J u ris d ic tio n s
h av e g e n e ra lly seen em in en t d o m a in an d e a sem en ts by n ec essity as a lte rn a tiv e w a y s to
e ffect th e sam e results. . . . [S Jtate c o u rts h a v e held th a t th e “e a sem en t b y n e c e ssity ”
d o c trin e is not av a ilab le to th e so v ereig n .
Id. at 679-81 (fo o tn o te s o m itte d ). O f c o u rs e , th e o p in io n in L eo Sheep is n o t a lo n e d is p o s itiv e o f th e
q u estio n you h a v e asked. It in v o lv e d a claim by th e g o v e rn m e n t g ra n to r, n o t th e p riv a te g ra n te e , o f an
e a sem en t by n ecessity. T h e C o u rt th e re d id rely su b stan tially on th e p o w e r o f em in en t d o m a in , an d
w as c a re fu l n o t to d e c id e th e b ro a d e r q u e s tio n o f th e av ailab ility o f th e ea se m e n t-b y -n e c e ssity d o c trin e
g en e ra lly . In an e a rlie r ca se refu sin g to find a re se rv e d w a y o f n ec essity fo r a p u b lic ea se m e n t ac ro ss
p riv a te la n d , a d is tric t c o u r t s tated m o re b ro a d ly : ‘i t is, in m y ju d g m e n t, v e ry d o u b tfu l w h e th e r th e
d o c trin e o f w ay s o f n ec essity has a n y a p p lic a tio n to g ra n ts fr o m th e g e n e ra I G o v e rn m e n t u n d e r th e
p u b lic land la w s ." U nited S ta tes v. R indge, 208 F. 611, 618 (S .D . C al. 1913). S ee also. S u n S tu d s Inc., 83
I.D . 518 (1976). B u t see, B ydlon v. U nited States. 175 F . S u p p . 891 (C t. C l. 1959); M a c k ie v. U n ited
States. 195 F . S upp. 306 (D . M inn. 1961).
29 O f c o u rs e , ev e n w ith o u t su c h an e n title m e n t, a la n d o w n e r m ay ap p ly fo r an ea se m e n t p erm it
u n d e r p ro c e d u re s esta b lish ed p u rsu a n t to o th e r statu tes. S ee F L P M A , 43 U .S .C 1761-1771; A c t o f
O c to b e r 13, 1964, 16 U .S .C . 532 et seq. It c a n n o t b e assum ed th a t C o n g re s s , o r fed era l r e g u la to ry
a u th o ritie s , w ill e x e c u te th e ir p o w e r in su ch a w a y as to b rin g ab o u t in ju stice . S e e U n ited S ta te s v.
C alifornia, 332 U .S. 19, 40 (1947).

43
 the oil company was entitled to move heavy equipment across the
reservation to drill for oil on the leased property. In ruling that access
was limited to the scope of the grant, the court stated:
Certainly it cannot be said either that public policy de­
mands or that the Indians’ trustee impliedly intended a
grant of a way of access across Indian lands greater in
scope than was required for mission purposes and whose
greater scope was necessary only in order to permit the
granted lands to be used in a fashion adverse to the
interests of the Indians.30
Although some courts that have dealt with this issue have written in
terms of easements by necessity, most of them in effect have looked at
the grant in question and limited access according to the purpose of the
grant. The Superior Oil case was relied on by the Tenth Circuit in
Kinscherff v. United States, 586 F.2d 159 (10th Cir. 1978), which held:
An easement by necessity for some purposes could possibly
have arisen when the United States granted the patent to
plaintiffs’ predecessor in interest. . . . While nothing ordi­
narily passes by implication in a patent, Walton v. United
States, 415 F.2d 121 (10th Cir.), an implied easement may
arise within the scope o f the patent.
Id. at 161 (emphasis added).
Similar statements appear in Utah v. Andrus, (unreported) C 79-0037
(D. Utah Oct. 1, 1979), in which Utah claimed an easement by neces­
sity for access to its school grant lands. Relying on United States v.
Dunn, 478 F.2d 443, 444 n.2 (9th Cir. 1973), the district court con­
cluded: “Although this common law presumption might not ordinarily
apply in the context of a Federal land grant, the liberal rules of
construction applied to school trust land allowed for the consideration
of this common law principle and justify its application here.” 31 The

30T h e c o u r t, in e ffec t, c re a te d a h y b rid d o c trin e , a p p ly in g p rin c ip le s o f b o th w a y s o f n ec essity an d
w a y s c r e a te d b y th e a c tu a l in ten t o f th e g ra n to r:
A p p e lla n t's p o sitio n is sim p ly th a t sin ce th e p a te n t fo r th e M ission w as in u n re s tric te d
fee sim p le it c a rrie d w ith it by im p lic a tio n a w a y o f n e c e ssity o v e r lan d s o f th e U n ited
S ta te s fo r all p u rp o s e s to w h ic h th e c o n v e y e d land m ig h t la w fu lly b e put.
S u c h is n o t th e law . T h e s c o p e a n d e x te n t o f th e rig h t o f a c c e s s d e p e n d s n o t u p o n th e
s ta te o f title o f th e d o m in a n t e s ta te , n o r th e e x iste n c e o r la c k o f lim itatio n s in th e g ra n t
o f th a t esta te, b u t u p o n w h a t m ust, u n d e r th e c irc u m s ta n c e s , b e a ttrib u te d to th e
g r a n to r e ith e r by im p lic a tio n o f in te n t o r by o p e ra tio n o f la w fo u n d e d in a pu b lic
p o lic y fa v o rin g land u tiliz atio n .
S u p erio r O il Co. v. U nited Stales, 353 F .2 d 34, 36 -3 7 (9 th C ir. 1965).
31 S lip O p . at 8. In U nited S ta te s v. D u n n , 478 F .2 d 443 (9 th C ir. 1973), th e U n ite d S ta te s s o u g h t an
in ju n c tio n to p re v e n t D u n n , w h o h e ld title as a g ra n te e o f a ra ilro a d , fro m c o n s tr u c tin g an ac c e ss ro a d
fo r c o m m e rc ia l a n d re sid e n tia l d e v e lo p m e n t o f his la n d . T h e d is tric t c o u r t g ra n te d p a rtia l su m m a ry
ju d g m e n t, h o ld in g d e fe n d a n ts tre sp a ss e rs a n d th e g o v e rn m e n t e n title d to im m e d ia te possession. T h e
N in th C irc u it re v e rs e d , h o ld in g th a t s u m m a ry ju d g m e n t w a s p re c lu d e d b e c a u se d e fe n d a n ts raised th e
fa c tu a l issue w h e th e r th e y h a d an e a se m e n t by n ec essity . Id. at 446. T h e D u n n c o u r t 's o n ly d iscu ssio n
o f th e a p p lic a tio n o f th e d o c trin e , h o w e v e r, a p p e a re d in a f o o tn o te re sp o n se to th e d issen tin g ju d g e . In
th e d isse n t. J u d g e W rig h t s ta te d sim p ly th a t h e " w o u ld h o ld th a t u n d e r th e facts o f th is ca se th e
C ontinued

44
court went on to hold that this right is not absolute, however. It
reasoned:
Under the Constitution Congress has the authority and
responsibility to manage Federal land. U.S. Const, art. IV,
§ 3, cl. 2. . . . There is nothing in the school land grant
program that would indicate that when Congress devel­
oped the school land grant scheme it intended to abrogate
its right to control activity on Federal land. Further, it is
consistent with common law property principles to find
that the United States, as the holder of the servient tene­
ment, has the right to limit the location and use of Utah’s
easement of access to that which is necessary for the
state’s reasonable enjoyment of its right. . . . Thus, the
court holds that, although the State of Utah or its lessee
must be allowed access to section 36, the United States
may regulate the manner of access under statutes such as
FLPMA.
Slip Op. at 21.
Cases like Superior Oil, Kinscherff, and Utah v. Andrus lend support
to my conclusions with respect to implied rights to access across
federal land. While the common law easement by necessity does not
run against the United States, a right to access may nonetheless be
implied by reference to particular grants. And, to the extent that such
implied rights exist, your broad authority—delegated to you by Con­
gress—to manage forest reserves empowers you to regulate their exer­
cise. See United States v. Perko, 108 F. Supp. 315, 322-23 (D. Minn.
1952), affd, 204 F.2d 446 (8th Cir.), cert, denied, 346 U.S. 832 (1953);
Perko v. Northwest Paper Co., 133 F. Supp. 560, 569 (D. Minn. 1955).
Determining what implied rights exist in the numerous federal land
grants is beyond the scope of this opinion. As set forth above, this
determination depends on when the grant was made and for what
purpose. Mindful of the goal of giving effect to legislative intent, you
must look to the rules the Supreme Court has adopted for interpretation
of federal land grants. As discussed previously, land grants generally
are to be strictly construed. This rule must be balanced against the
conflicting rule that in some situations, certain types of land grants may
deserve a more liberal construction because of the circumstances sur­
rounding passage of the statutes in question. See generally Leo Sheep Co.
v. United States, 440 U.S. 668, 682-83 (1979) (railroad land grants);

d o c trin e o f ea se m e n t b y n ec essity is n o t b in d in g o n th e U n ite d S tates. . . Id. at 446. T h e m a jo rity
resp o n d ed ;
S in ce th e G o v e rn m e n t d id n o t, in o u r ju d g m e n t, raise th e p o in t u p o n w h ic h J u d g e
W rig h t bases his d issen t, w e h a v e n o t d iscu ssed it in th e o p in io n , b u t n e v e rth e le ss d id
g iv e it c o n s id e ra tio n a n d c o n c lu d e d th a t it la ck ed m erit.
Id. at 444 n.2. I d o not find th is ca se p ersu asiv e a u th o rity fo r a p p lic a tio n o f th e d o c trin e .

45
 Wyoming v. United States, 255 U.S. 489, 508 (1921) (state school land
grants). Absent express language to the contrary, however, a grant
should not be construed to include broad rights to use retained govern­
ment property, particularly in the case of gratuitous grants. See United
States v. Union Pac. R.R., 353 U.S. 112 (1957); Camfield v. United
States, 167 U.S. 518 (1897); Wisconsin Central R.R. v. United States, 164
U.S. 190 (1896); 30 Op. A tt’y Gen. 263, 264 (1941).
Once the right, if any, is found to exist, you should consider how
that right reasonably should be regulated to protect the public’s interest
in federal property. It is beyond dispute that such rights are subject to
reasonable regulation without a resulting inverse condemnation. See
generally Johnson v. United States, 479 F.2d 1383 (Ct. Cl. 1973) (restric­
tion of access by erection of fence enclosing extended portion of high­
way held not a taking); 2 Nichols on Eminent Domain § 5.72[1] (1978).
Nonetheless, fewer restrictions properly may be imposed on well
established, developed uses than on unexercised rights. See Penn Central
Transp. Corp. v. City o f New York, 438 U.S. 104 (1978); Euclid v. Amber
Realty Co., 272 U.S. 365 (1926). Frustration and appropriation are
essentially different things. United States v. Grand River Dam Authority,
363 U.S. 229, 236 (1960), citing Omnia Co. v. United States, 261, 502,
513 (1923).

III.

Your third question is whether any act of Congress has modified any
implied rights that may accompany federal grants. Of particular con­
cern are the Wilderness Act, 16 U.S.C. §§1131-1136, and various
wilderness study acts.32 See, e.g., Montana Wilderness Study Act of
1977, Pub. L. No. 95-150, 91 Stat. 1243; Sheep Mtn. and Snow Mtn.
Wilderness Areas, et al., Pub. L. No. 94-557, § 3, 90 Stat. 2635 (1976).
These wilderness study acts require you to exercise your discretion so
as to preserve the wilderness character of the land.33 If a request for a
particular mode of access would destroy that wilderness character,
therefore, you must deny the request. These acts also provide, how­
ever, that their mandates are subject to “existing private rights.” 34 See,
e.g., Montana Wilderness Study Act, § 3(a), 16 U.S.C. § 1132 note. You
must determine, therefore, what implied access rights are guaranteed in
a particular grant, and allow the exercise of those rights. The wilder­

32 T h e im p a c t o f th e W ild e rn e ss A c t is d iscu ssed in P a rt IV .
33 S ee P arker v. U ntied States. 448 F .2 d 793 (1 0 th C ir. 1971), cert, d en ied sub. nom ., K a ib a b In d u stries
v. Parker, 405 U .S. 989 (1972) (h e ld S e c r e ta r y ’s d is c re tio n to e n te r in to th e tim b e r h a rv e s tin g c o n tr a c t
fo r p u b lic land is lim ited by 16 U .S .C . § 1132(b)).
34 In a d d itio n to “ ex istin g p r iv a te rights,*' th e W ild e rn e ss A c t p e rm its in g re ss to a n d e g re s s fro m
m in in g lo c a tio n s until D e c e m b e r 31, 1983. 16 U .S .C . § 1133(d)(3). S u c h in g re ss an d eg re s s is s u b je c t to
re a so n a b le re g u la tio n b y th e S e c re ta ry o f A g ric u ltu re , c o n s is te n t w ith use o f th e lan d fo r m in eral
e x p lo ra tio n , lo c a tio n , d e v e lo p m e n t, p ro d u c tio n , a n d re la te d p u rp o ses.

46
ness study acts thus do not modify any implied rights that may accom­
pany federal grants.
Nor do I find that the other statutes you cite modify such implied
rights. The Organic Act of 1897, 16 U.S.C. §478, discussed at length in
Part I of this opinion, preserves access rights existing at the time of
creation of a forest reserve. The Act of October 13, 1964, 16 U.S.C.
532-538, which authorizes the Secretary of Agriculture to grant ease­
ments for road rights-of-way over lands administered by the Forest
Service,35 was passed in reaction to Attorney General Kennedy’s 1962
interpretation of 16 U.S.C. §478, which, as discussed earlier, allowed
the imposition of a reciprocity requirement with respect to rights-of-
way. By empowering the Secretary of Agriculture to grant permanent
easements, the Congress hoped to provide an alternative to statutory
assurance of access to and from private inholdings.36 Thus, the statute
does not substantively modify implied rights of access. It does, along
with FLPMA, allow the imposition of certain procedural requirements,
such as application for a permit prior to road construction. We have
found no other statute that substantively modifies implied access rights.

IV.

Your final question concerns § 5(a) of the Wilderness Act, 16 U.S.C.
1134(a). Your department has concluded that this provision guarantees
a private owner “adequate access” to an inholding unless the land­
owner voluntarily chooses a land exchange. Pursuant to this interpreta­
tion, regulations have been promulgated providing that access “shall be
given.” 37 The Department of the Interior has taken the position that
§ 5(a) grants the Secretary of the Interior (and, by analogy, the Secre­
tary of Agriculture) the authority to deny access to a landowner, and

3516 U .S .C . § 533. S ee p. 10 & n o te 13 supra. T h is s ta tu te w as n ot re p e a le d b y F L P M A . W ith
resp ect to th e S e c re ta ry o f A g ric u ltu r e ’s a u th o rity u n d e r §§ 5 3 2-538, F L P M A p ro v id e d :
[N ]o th in g in th is s u b c h a p te r shall b e c o n s tru e d as affe c tin g o r m o d ify in g th e p ro v isio n s
o f sectio n s 532 to 538 o f title 16 an d in th e e v e n t o f c o n flic t w ith , o r in c o n sisten cy
b e tw e e n , th is s u b c h a p te r a n d sectio n s 532 to 538 o f title 16, th e la tte r shall p rev ail:
Provided fu rth e r. T h a t n o th in g in th is A c t sh o u ld be c o n s tru e d as m a k in g it m a n d a to ry ,
th a t, w ith resp ect to fo rest ro ad s, th e S e c re ta ry o f A g ric u ltu re lim it rig h ts-o f-w a y
g ra n ts o r th e ir te rm s o f y ea rs o r re q u ire d is c lo su re p u rs u a n t to se c tio n 1761(b) o f this
title o r im p o se an y o th e r c o n d itio n c o n te m p la te d by this A c t th a t is c o n tr a r y to p re se n t
p ra c tic e s o f th a t S e c re ta ry u n d e r s e c tio n s 532 to 538 o f title 16.
43 U .S .C . § 1770(a).
36 S. R ep. N o . 1174, 88th C o n g ., 2d Sess. 4 (1964). See n o te 10 supra.
3736 C .F .R . § 293.12. T h is re g u la tio n p ro v id e s in p art:
S ta te s o r p erso n s, a n d th e ir s u c c e sso rs in in te re st, w h o o w n la n d c o m p le te ly s u r ­
ro u n d e d by N atio n al F o re s t W ild ern ess shall be g iv e n su c h rig h ts as m ay b e n e c e ssa ry
to a ssu re a d e q u a te a c cess to th e land. “ A d e q u a te a c c e s s ” is d e fin e d as th e c o m b in a tio n
o f ro u te s a n d m o d e s o f tra v e l w h ic h w ill, as d e te rm in e d by th e F o re s t S e rv ic e , ca u se
th e least la stin g im p a c t o n th e p rim itiv e c h a ra c te r o f th e land a n d at th e sam e tim e w ill
s e rv e th e re a so n a b le p u rp o s e s fo r w h ic h th e S ta te a n d p riv a te la n d is h e ld o r used.
T h is re g u la tio n is c o n s is te n t w ith y o u r d e p a rtm e n t’s in te rp re ta tio n o f 16 U .S .C . § 4 7 8 . S e e 36 C .F .R .
§ 212.8(b).

47
offer land exchange as indemnity.38 The Interior Department’s interpre­
tation, contrary to yours, under appropriate circumstances would allow
denial of “adequate access” to private holdings as well as to state-
owned inholdings.
Some initial observations about the Wilderness Act are in order. The
purpose of the Wilderness Act is to “secure for the American people of
present and future generations the benefits of an enduring resource of
wilderness.” 16 U.S.C. § 1131(a). “Wilderness” is defined as an area of
“undeveloped Federal land retaining its primeval character and influ­
ence, without permanent improvements or human habitation.” 16
U.S.C. § 1131(c). Section 4(c) of the Act prohibits, with limited excep­
tions, use of motor vehicles or other mechanical transportation. 16
U.S.C. § 1133(c). It also prohibits permanent roads within any wilder­
ness area, except as specifically provided in the Act, and subject to
“existing private rights.” Id. The Act directs you to administer wilder­
ness areas within your jurisdiction so as to preserve their wilderness
character. 16 U.S.C. § 1133(b). The phrase “existing private rights” in
§ 4(c), 16 U.S.C. § 1133(c), is not defined in the Act or in its legislative
history, but, in my opinion, includes existing easements, which are well-
recognized rights in property.39 Thus, in spite of the A ct’s general
prohibitions, if a private inholder has an implied right to a particular
type of access, that right is preserved.
The Wilderness Act was developed over a 15-year period, with
almost unprecedented citizen participation. See S. Rep. No. 109, 88th
Cong., 1st Sess. 7 (1963). The first major wilderness bill was introduced
in the 85th Congress. S. 1176, 85th Cong., 1st Sess. (1957). In 1961, the
Senate passed a wilderness bill, S. 174, but the House failed to pass it.

38 S u p p le m e n ta l M e m o ra n d u m In S u p p o rt o f P la in tifT s M o tio n fo r P e rm a n e n t In ju n c tio n , at 14-19,
U n ited S ta tes v. C otter Corp., N o. C 7 9 -0 3 0 7 (D . U ta h O c t. 1, 1979). T h e c u r r e n t reg u la tio n o f th e
In te r io r D e p a r tm e n t’s F ish a n d W ild life S e rv ic e , 50 C .F .R . 35.13, a lth o u g h s o m e w h a t am b ig u o u s,
re s tric ts a c cess to m eans an d ro u te s w h ic h w ill “ p re s e rv e th e w ild e rn e s s c h a ra c te r o f th e a re a .” T h e
re g u la tio n p ro v id e s:
R ig h ts o f S ta te s o r p e rs o n s an d th e ir su c c e s s o rs in in te re st, w h o se lan d is su rro u n d e d
by a w ild e rn e s s u n it, w ill be re c o g n iz e d to a ssu re a d e q u a te a c cess to th a t land.
A d e q u a te a c c e s s is d e fin e d as th e c o m b in a tio n o f m o d e s a n d ro u te s o f tra v e l w h ic h
w ill best p r e s e r v e th e w ild e rn e s s c h a ra c te r o f th e la n d sc a p e . M o d es o f tra v e l d e s ig ­
n ated shall be re a so n a b le a n d c o n s is te n t w ith a c c e p te d , c o n v e n tio n a l, c o n te m p o ra ry
m o d e s o f tra v e l in said v ic in ity . U se w ill b e c o n s is te n t w ith re a so n a b le p u rp o se s fo r
w h ic h s u c h la n d is h eld . T h e D ir e c to r w ill issue s u c h p e rm its as a re n e c e ssa ry fo r
ac cess, d e sig n a tin g th e m e an s an d ro u te s o f tra v e l fo r in g re ss an d d e g re s s (sic) so as to
p re s e rv e th e w ild e rn e s s c h a ra c te r o f th e a rea .
395ee, e.g.. U nited S ta te s v. Welch, 217 U .S . 333, 339 (1910); M yers v. U n ited States, 378 F .2 d 696,
703 (C t. C l. 1967). It lo g ic a lly c o u ld b e a rg u e d th a t th e p h ra s e “ ex istin g p riv a te r ig h ts '' in c lu d e s an d
p re s e rv e s o n ly th o s e rig h ts w h ic h h a d b ee n e x e rc ise d at th e tim e th e W ild e rn e ss A c t w as p assed . L ittle
s u p p o rt exists, h o w e v e r, for th is a rg u m e n t th a t C o n g re s s in te n d e d to ex tin g u ish u n ex e rc ised ac cess
rig h ts, le a v in g th e la n d o w n e r w ith o n ly th e rig h t to a c cess o r e x c h a n g e u n d e r § 5(a). W h e n p ro v id in g
fo r p r e s e rv a tio n o n ly o f e s ta b lis h e d uses, C o n g re s s c le a rly so in d ic a te d . S ee 16 U .S .C . § 1133(d)(1)
(p e rm ittin g esta b lish e d uses o f a irc ra ft a n d m o to rb o a ts ). In S. R ep . N o . 109, 88 th C o n g ., 1st Sess. 2
(1963), th e c o m m itte e s ta te d th a t u n d e r th e W ild e rn e s s P re s e rv a tio n S y stem , “ e x istin g p r iv a te rig h ts
a n d esta b lish ed u ses" a re p e rm itte d to c o n tin u e . (E m p h a s is a d d e d .) A w a y o f a c c e s s to w h ic h a p erso n
is e n title d b y ex p ress o r im p lie d g ra n t p re d a tin g th e W ild ern ess A c t is a rig h t w h ic h ex isted p r io r to
th e e ffe c tiv e d a te o f th e A c t, w h e th e r e x e rc is e d o r u n ex e rc ised .

48
In 1963, S. 4 was introduced in the 86th Congress. It was identical to
S. 174, with one exception not relevant here. It passed the Senate by a
large margin (110 Cong. Rec. 17,458 (1964)), but was amended in the
House (110 Cong. Rec. 17,461 (1964)). A conference committee was
convened and adopted with few amendments the House version of the
bill, H.R. 9070. See H.R. Rep. No. 1829, 88th Cong., 2d Sess. (1964).
The conference bill was approved by both Houses (110 Cong. Rec.
20,603, 20,632 (1964)) and signed by the President on September 3,
1964.
Section 5(a) of the Act deals with state and private property com­
pletely surrounded by wilderness areas. It provides:
In any case where State-owned or privately owned land
is completely surrounded by national forest lands within
areas designated by this chapter as wilderness, such State
or private owner shall be given such rights as may be
necessary to assure adequate access to such State-owned
or privately owned land by such State or private owner
and their successors in interest, or the State-owned land
or privately owned land shall be exchanged for federally
owned land in the same State of approximately equal
value under authorities available to the Secretary of Agri­
culture: Provided, however, that the United States shall
not transfer to a State or private owner any mineral
interests unless the State or private owner relinquishes or
causes to be relinquished to the United States the mineral
interest in the surrounded land.
Since the enactment of the Wilderness Act, your department has inter­
preted this language to preserve the statutory right of access you found
in 16 U.S.C. § 478.40 Because, in my opinion, §478 does not grant a
right of access to inholders other than actual settlers, the question
presented here is whether § 5(a) grants to inholders a broad right of
“adequate access” beyond any existing private rights. I believe it does
not.
The term “adequate access” is not defined in the Act, but the legisla­
tive history makes clear that the term includes access not consistent
with wilderness uses.41 For example, in both the Senate and House

40S ee n o te 37 supra.
41 O th e r sectio n s a p p ly to uses c o n s is te n t w ith w ild e rn e ss p re s e rv a tio n . In § 5(b), 16 U .S .C .
§ 1134(b), C o n g re s s p ro v id e d th a t w h e re v alid m in in g claim s o r o th e r v a lid o c c u p a n c ie s a r e s u r­
ro u n d e d b y a n atio n al fo rest w ild e rn e ss a rea , th e S e c re ta ry o f A g ric u ltu r e sh all, b y re aso n ab le
re g u la tio n s co n siste n t w ith th e p re s e rv a tio n o f th e a re a as w ild e rn ess, p e rm it in g re ss to a n d eg ress
fro m su ch s u rro u n d e d a re a s by m eans w h ic h h a v e been o r a re b e in g c u s to m a rily e n jo y e d w ith re s p e c t
to sim ilarly s itu a te d area s. Cf. 16 U .S .C . § 1133(d) (p ro v id e s fo r re g u la tio n o f in g re ss a n d e g ress
co n siste n t w ith use o f land fo r m in eral e x p lo ra tio n a n d d e v e lo p m e n t). S e c tio n 5(b) d id n o t a p p e a r in
e ith e r S. 174 o r S. 4. It d id a p p e a r in se v e ra l e a rly H o u se v ersio n s o f th e bill, a n d th e se v ersio n s
ex p ressly in c lu d e d “ p riv a te ly o w n e d la n d s" in a d d itio n to v alid m in in g claim s a n d o th e r valid
C ontinued

49
debates, repeated references were made to road construction for motor­
ized vehicles. See, e.g., 107 Cong. Rec. 18,105 (1961); 109 Cong. Rec.
5,925-26 (1963). Accordingly, your regulation defining “adequate
access” does not limit access to established uses or to means consistent
with wilderness uses. It includes access which “will serve the reason­
able purposes for which the state and private land is held or used.” 42
What constitutes adequate access will depend on the facts and circum­
stances o f each case, and is a determination left to your discretion.
The Act requires that the state or private inholder be given such
rights as are necessary to assure adequate access, or that the land be
exchanged for federally owned land of approximately equal value. The
language of § 5(a) indicates that a landowner has a right to access or
exchange. If he is offered either,, he has been accorded all the rights
granted by the statute. If you offer land exchange, the landowner has
no right of access under § 5(a). This interpretation is supported by the
legislative history of the section.43
The language of § 5(a) first appeared in an amendment to S. 174, 87th
Cong., 1st Sess. (1961). Senator Bennett of Utah proposed the amend­
ment in response to concerns of the Western Association of State Land
Commissioners, and, accordingly, the amendment pertained only to
state-owned land. 107 Cong. Rec. 18,092 (1961).44 The Senator identi­
fied a series of “loopholes” in the bill. He described the 13th loophole
as follows: “No provision is made in S. 174 to preserve the right of

o c c u p a n c ie s. T h is re fe re n c e to p riv a le ly o w n e d lan d s w as d e le te d in la te r v e rs io n s o f th e b ill, su c h as
H .R . 9070. T h e re p o ris d o n o t e x p lain this d e le tio n . It m ay h a v e o c c u rr e d b e c a u se o f th e d ecisio n
d u rin g th e sam e session to in c lu d e p riv a te ly o w n e d land in § 5(a).
T h e final p a ra g ra p h o f § 5 , 16 U .S .C . § 1134(c), a u th o riz e s y o u to a c q u ire s ta te o r p riv a te ly o w n e d
land o n ly if e ith e r th e o w n e r c o n c u rs o r C o n g re s s s p ecifically a u th o riz e s th e a c q u isitio n .
42 S e e 36 C .F .R . § 293.12, n o te 27 supra.
43 Y o u r d e p a rtm e n t relies o n th e le g isla tiv e h is to ry o f su b se q u en t le g islatio n to s u p p o rt its c o n te n ­
tio n th a t § 5(a) g ra n ts a rig h t to a d e q u a te ac c e ss to in h o ld e rs. In a re p o rt filed in c o n ju n c tio n w ith th e
In d ia n P eak s W ild ern ess A re a , et a l, 16 U .S .C . § 1132 n o te , th e H o u se C o m m itte e n o te d th a t § 5 o f
th e W ild e rn e s s A c t re q u ire s th e S e c re ta ry to g iv e p riv a te la n d o w n e rs a d e q u a te ac cess. H .R . R ep . N o .
1460, 9 5 th C o n g ., 2d Sess. 9 -1 0 (1978). T h e re p o rt d o e s n o t d iscu ss th e e x c h a n g e o p tio n .
T h is le g is la tiv e o b s e rv a tio n is n o t a p a rt o f th e le g isla tiv e h is to ry o f th e W ild e rn e ss A c t. It is th e
in te n t o f th e C o n g re s s th a t e n a c te d a la w th a t c o n tr o ls in te rp re ta tio n o f th a t law . U n ited A irlines, Inc.
v. M cM a n n . 434 U .S. 192, 200 n.7 (1977); T eam sters v. U nited S ta tes, 431 U .S . 324, 354 n.39 (1977).
W h a te v e r e v id e n c e is p ro v id e d b y th e re p o rt on th e su b se q u en t le g islatio n is o v e r c o m e b y c o n flic tin g
ev id e n c e . See Southeastern C o m m u n ity C ollege v. Davis, 442 U .S . 397, 4 1 1 -1 2 (1979); Oscar M a yer &
Co. v. Evans, 441 U .S. 750, 758 (1979).
44 T h e re so lu tio n passed b y th e W e ste rn S ta te L a n d C o m m issio n e rs s u g g e s te d th a t th e bill be
a m e n d e d to c o n ta in th e fo llo w in g p ro v isio n :
W h e n e v e r an a re a in c lu d in g S ta te -o w n e d land is in c o rp o ra te d in th e w ild e rn e s s sy stem ,
p ro v is io n shall b e m a d e fo r a c cess to su ch land a d e q u a te fo r th e re a so n a b le ex e rc ise o f
its rig h ts th e re in b y th e S ta te a n d th o s e claim in g u n d e r it . . . . P r o v id e d , h o w e v e r,
th a t, if th e re c o m m e n d a tio n b y w h ic h an a re a in c lu d in g S ta te -o w n e d la n d is in c o r p o ­
ra te d in th e w ild e rn e s s sy stem shall fail to p ro v id e fo r a c c e s s to th e S ta te -o w n e d land
th e re in , th e n th e o w n in g S ta te m ay, at its e le c tio n , use th e in c lu d e d S ta te lan d as b ase
in m a k in g in d e m n ity se le c tio n o f la n d s, in c lu d in g th e m in eral rig h ts th e re in as p ro v id e d
in a p p lic a b le U .S. s ta tu te s.
107 C o n g . R e c . 18,103 (1961). T h e re s o lu tio n illu stra te s th a t th e C o m m issio n ers also b e lie v e d ac cess
c o u ld b e d e n ie d . T h e in d e m n ity s ta tu te s to w h ic h th e re so lu tio n refers, 43 U .S .C . 851, 852, a llo w states
to m a k e in d e m n ity s e le c tio n s w h e n e v e r sc h o o l s e c tio n s a re lost b e c a u se o f o th e r re s e rv a tio n s o r g ra n ts
o f th e land.

50
access to State school sections or other lands. This should certainly be
done or alternatively, the States should be permitted to choose Federal
lands in another location in lieu of the land isolated within wilderness
areas.” Id. The choice referred to by Senator Bennett was the choice of
lands if access were denied, not the choice of either access or exchange.
He stated that the purpose of his amendment was to “give the States
access to State lands within wilderness areas established under the bill,
or indemnify the States for loss of such access.” 107 Cong. Rec. 18,103
(1961). He did not indicate that a state could choose between access
and indemnity. His amendment provided in part:
In any case where State-owned land is completely sur­
rounded by lands incorporated into the wilderness system
such State shall be given (1) such rights as may be neces­
sary to assure adequate access to such State-owned land
by such State and its successors in interest, or (2) land in
the same State, not exceeding the value of the surrounded
land, in exchange for the surrounded land. Exchanges of
land under the provisions of this subsection shall be ac­
complished in the manner provided for the exchange of
lands in national forests.
107 Cong. Rec. 18,103 (1961). In urging support of his amendment,
Senator Bennett explained:45
[T]he Western Association of State Land Commissioners
unanimously adopted a resolution calling for indemnifica­
tion to the States which will lose access to State lands in
wilderness areas established under S. 174. Where State
school sections or other State lands are isolated by wilder­
ness areas, the State should be given an opportunity, if
access is denied, to make in lieu selections of Federal lands
in other areas.
Id. (emphasis added).46 These statements demonstrate that Senator
Bennett believed that access not consistent with wilderness preservation
could be denied, and wanted to give states an alternative in such
circumstances.
The Senator later explained that his amendment was designed to
correct problems states had experienced with land exchanges in the
past. 107 Cong. Rec. 18,105 (1961). He wanted to ensure that if the
state land was “locked up,” the state clearly would be entitled to an
exchange. He further explained:

45 A u th o rity to e x c h a n g e land is p ro v id e d by 16 U .S .C . § § 4 8 5 , 486 (o rig in a lly e n a c te d as A c t o f
M ar. 20, 1922, c h . 105, 42 S tat. 465) an d 16 U .S .C . § 516 (o rig in a lly e n a c te d as A c t o f M ar. 3, 1925,
ch . 473, 43 S tat. 1215).
46 H is b e lie f th a t a c cess to sta te -o w n e d lan d s m a y be d e n ie d e n tire ly m a y resu lt in p a rt fro m th e
la n g u a g e o f § 4 (c ) , 16 U .S .C . § 1133(c), w h ic h s p ecifically p ro te c te d o n ly ex istin g priva te rig h ts. H e
m a d e n o s ta te m e n ts re ly in g on th is la n g u ag e, h o w e v e r.

51
 The first choice, providing that the State shall have adequate
access, would in fact defeat the value o f the wilderness bill,
assuming there were a very valuable mineral in a State
school section, and the State were to decide that it was
worth money to drive a road through the wilderness to
get to it. This would change the situation with respect to
existing law, because we would be imposing particular
restrictions, in spirit at least, with respect to access to the
land.
Id. (emphasis added).
Because of misunderstandings regarding the effect of the proposed
amendment on mineral lands, Senator Bennett withdrew the amend­
ment to allow time to confer with other Senators from western states.
He re-offered the amendment the following day, with minor changes
not relevant here. 107 Cong. Rec. 18,384 (1961). Senator Church, who
earlier had expressed reservations about the amendment, now voiced
his support. In his brief remarks, he stated:
I think the amendment is fair to the States involved. If
they need rights of access, they should have them; if they
want to relinquish the land, they ought to have the right
to acquire other land of comparable value.
Id. Although we can infer from these remarks an understanding that
the section gives states the option of choosing access or exchange, the
statement does admit of other interpretations. In light of the evidence
to the contrary, the resolution of this question cannot be rested on the
remarks of one senator during debate on the Senate floor, where “the
choice of words . . . is not always accurate or exact.” In re Carlson,
292 F. Supp. 778, 783 (C.D. Cal. 1968), citing United States v. Internat'l
Union UAW-CIO, 352 U.S. 567, 585-86 (1957). If the Congress had
intended to grant landowners a right to adequate access, it could have
done so expressly. Resolving the doubt in favor of the grantee of such a
right would violate the well-established rule that any doubts as to
congressional grants of property interests must be resolved in favor of
the government. Andrus v. Charleston Stone Prod. Co., 436 U.S. 604, 617
(1978); United States v. Union Pac. R.R., 353 U.S. 112, 116 (1957).
The Senate agreed to Senator Bennett’s amendment to S. 174, but
S. 174 did not pass the House during the 87th Congress. A House
version of the bill did include a similar provision, also applicable only
to state-owned land. The House report on this bill indicated that the
section required only that a state be given either access or exchange; it
did not indicate that the state could choose between them, or that
adequate access otherwise was guaranteed. It stated:
If surrounded land is owned by a State, the State would
be given either right of access or opportunity of exchange.
52
 . . . Ingress and egress would be provided for all valid
occupancies.
H.R. Rep. No. 2521, 87th Cong., 2d Sess. 108 (1962) (emphasis added).
Variations of Senator Bennett’s amendment appeared in both the
Senate and House versions of the wilderness legislation in the 88th
Congress. S. 4, 88th Cong., 1st Sess. § 3(j) (1963); H.R. 9070, 88th
Cong., 2d Sess. § 6(a) (1964). The Senate committee report on S. 4
indicates that the understanding that states could be denied access and
offered a land exchange as indemnity remained unchanged:
Section 3(j) provides that where State inholdings exist
in wilderness areas, the State shall be afforded access, or
shall be given Federal lands in exchange of equal value.
The amendment is an attempt to clarify the intention of
the Senate in regard to section 3(j), which was originally
proposed, withdrawn, revised, again proposed and
adopted during floor consideration of S. 174 in 1962 [sic].
The amended section represents a more deliberate and
careful drafting and consideration.
S. Rep. No. 109, 88th Cong., 1st Sess. 10, 21 (1963).
The House modified this section to include “privately owned land”
in the first paragraph regarding “adequate access,” rather than in the
second paragraph regarding “ingress and egress.” This modification is
not explained in the House report. See H.R. Rep. No. 1538, 88th Cong.,
2d Sess. 13 (1963). The change was discussed in both the Senate and
House hearings, however. The sentiment expressed was that private
owners should have the same rights as the States. National Wilderness
Preservation Act: Hearings on H.R. 9070, H.R. 9162, S. 4 and Related
Bills, Before the Subcomm. on Public Lands o f the House Comm, on
Interior and Insular Affairs, 88th Cong., 2d Sess. 1369-72 (1963). Both
public witnesses and congressmen stated that ingress and egress was
uncertain under both 16 U.S.C. §478 and the wilderness acts, and that
the same provision for exchange should be made for private owners as
was made for States. Id. There is no indication that this addition of
privately owned lands modified the purpose of the section as identified
by Senator Bennett.
In sum, if uses are well-established prior to wilderness designation,
they may be permitted to continue.47 In addition, all existing private

47 S ectio n 4(d)(1) o f th e A c t, 16 U .S .C . § 1133(d)(1), p ro v id e s th a t th e “ use o f a irc ra ft o r m o to r ­
b o ats, w h e re th e se uses h av e a lre a d y b e c o m e esta b lish e d , m ay be p e rm itte d to c o n tin u e su b je c t to su ch
re stric tio n s as th e S e c re ta ry o f A g ric u ltu re d ee m s d e s ira b le .” T h e c o m m itte e re p o rts rev ea l an in ten t
th a t o th e r w ell-estab lish ed uses also be p e rm itte d to c o n tin u e . See. e.g.. S. R ep . N o . 109, 88 th C o n g .,
1st Sess. 2, 10 (1963). See also 109 C o n g . R ec. 5926 (1963) ( S e n a to r C h u r c h , a sp o n so r o f th e bill,
ex p ressed th e v ie w th a t o w n e rs o f ra n c h e s be a llo w e d to c o n tin u e “ th e c u s to m a ry u sag e o f th e ir
p r o p e rty fo r in g re ss an d e g ress a c c o r d in g to th e c u s to m a ry w a y s ” ).

53
rights of access are preserved. Even if the landowner has no prior
existing right to access not consistent with wilderness uses, the Wilder­
ness Act requires that “adequate access” be given or that an offer be
made to the landowner to exchange the land for federal land of ap­
proximately equal value. As a result of § 5(a), therefore, the inholder
actually may possess more access “rights” than were possessed prior to
wilderness designation. If the landowner rejects an offer of land ex­
change, he may retain title to the inholding and exercise access rights
consistent with wilderness uses, or he may consent to acquisition of his
land by the federal government.
These responses to the questions you have asked should provide
satisfactory guidance in your performance of your federal land manage­
ment responsibilities.

Sincerely,
B e n ja m in R. C iv ile tti

54