FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

THE FITZGERALD LIVING TRUST, 

Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA; MIKE

JOHANNS, Secretary of Agriculture; No. 04-16149

DALE N. BOSWORTH, Chief, United D.C. No.

States Forest Service; UNITED  CV-02-00069-DKD

STATES FOREST SERVICE; HARV OPINION FORSGREN, Regional Forester,

Region III; and ELAINE ZIEROTH,

Forest Supervisor, ApacheSitgreaves National Forests,

Defendants-Appellees.* 

Appeal from the United States District Court

for the District of Arizona

David K. Duncan, Magistrate Judge, Presiding

Argued and Submitted

April 4, 2006—San Francisco, California

Filed August 30, 2006

Before: Marsha S. Berzon, Johnnie B. Rawlinson, and

Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Callahan

*Mike Johanns, Harv Forsgren, and Elaine Zieroth are substituted as

parties to this appeal for their predecessors Ann M. Veneman, Eleanor S.

Towns, and John C. Bedell. Fed. R. App. P. 43(c)(2). 

10461
COUNSEL

Joel Spector (argued) and Alison Roberts (on the briefs),

Mountain States Legal Foundation, Lakewood, Colorado, for

the plaintiff-appellant. 

Matthew J. Sanders, United States Department of Justice,

Environment & Natural Resources Division, Washington,

D.C., for the defendants-appellees.

10464 THE FITZGERALD LIVING TRUST v. UNITED STATES
OPINION

CALLAHAN, Circuit Judge: 

The Fitzgerald Living Trust challenges the district court’s

summary judgment in favor of the Secretary of the United

States Department of Agriculture, the United States Forest

Service and individual Forest Service officials (“the Forest

Service”). We must decide the nature of the Trust’s right of

access over a national forest road, and whether the Forest Service’s proposed statutory easement, providing the Trust with

access over the road, is reasonable. 

I

In 1983, Raymond and Nancy Fitzgerald purchased the

O’Haco Cabins Ranch, a twenty-eight acre cattle ranch

located in northern Arizona approximately fifty miles southwest of Winslow. The Fitzgeralds maintain a residence on the

property and have used and continue to use the ranch as a

base camp for their cattle grazing operations in the adjacent

Sitgreaves National Forest.1 The property contains a house,

with no electricity or generator, and a water source. 

In 1920, President Wilson granted the O’Haco Cabin

Ranch property to Stelzer Tillman pursuant to the 1862

Homestead Act. Act of May 20, 1862, ch. 75, 12 Stat. 392-93

(1862) (codified at 43 U.S.C. §§ 161-284) (repealed 1976).

The patent transferred the tract of land “with the appurtenances thereof.” When the property was surveyed in 1916, it

contained simple improvements—a two-room log dwelling, a

1

In 1891, Congress passed the Forest Reserve Act, vesting the President

with the authority to reserve forest land from the public domain. 16 U.S.C.

§ 471 (repealed 1976). Pursuant to this act, in 1898 President McKinley

reserved the Black Mesa Forest Reserve, which later became known at the

Sitgreaves National Forest. In 1974, the Sitgreaves and Apache Forests

were administratively combined and are sometimes referred to jointly as

the Apache-Sitgreaves National Forests. 

THE FITZGERALD LIVING TRUST v. UNITED STATES 10465
log and dirt root cellar, two pole corrals, and a well. The survey also noted the existence of a nine-mile rough trail from

the property leading to a forty-six-mile wagon road to Winslow. At the time the United States granted the O’Haco Cabins

Ranch to Tillman, the property was surrounded by the Sitgreaves National Forest or by lands owned by third parties.

When Tillman obtained the property, he accessed it by crossing the national forest or land owned by third parties. 

When the Fitzgeralds purchased the O’Haco Cabins Ranch

in 1983, the property was completely surrounded by the Sitgreaves National Forest. There were several access routes to

the property through the national forest. After the Fitzgeralds

purchased the ranch, the Forest Service closed all motorized

access to the property except for the primary access route,

Forest Development Road 56B (“FDR 56B”). Prior to the

spring of 1986, the Forest Service never attempted to restrict

the Fitzgeralds’ or their predecessors-in-interest’s use of FDR

56B. In the spring of 1986, however, the Forest Service asked

the Fitzgeralds to apply for a “special use permit” under the

Federal Land Policy Management Act (“FLPMA”), 43 U.S.C.

§§ 1701 - 1785, to continue using the road.2 The request was

made pursuant to the Forest Service’s determination that FDR

56B was no longer needed for public use and pursuant to its

program of having all uses under permit. The Fitzgeralds

applied for the permit but refused to accept it because they

2Passed in 1976, FLPMA both recognizes preexisting rights-of-way,

and provides the Secretary of Agriculture with the authority to grant

rights-of-way for roads over lands administered by the Forest Service. 43

U.S.C. §§ 1761, 1769(a). The Act mandates that the government manage

public lands to promote environmental protection, recreation, and human

occupancy and use. 43 U.S.C. § 1701(a)(8). To that end, FLPMA directs

the Forest Service, when granting rights-of-way, to protect scenic and

esthetic values, fish and wildlife habitat, the environment, and the public

interest, and to achieve these goals by promulgating regulations. 43 U.S.C.

§§ 1764(c),(e); 1765(a)(ii),(b)(vi). FLPMA also requires that the United

States receive fair market value for use of the public lands. 43 U.S.C.

§ 1701(a)(9). 

10466 THE FITZGERALD LIVING TRUST v. UNITED STATES
felt that they had a legal right to access their property without

executing any permit. 

In 1988, based on a policy change, the Forest Service

offered the Fitzgeralds a “private road easement” under

FLPMA in lieu of the special use permit. The Fitzgeralds

refused the statutory easement as well. The Regional Forester

closed FDR 56B to motorized vehicles, and, in 1993, the

Chief of the Forest Service upheld the road closure decision.

The Fitzgeralds filed an earlier lawsuit challenging the road

closure and seeking to quiet title to a common law easement

over FDR 56B, but the case was dismissed as moot when the

proposed easement expired.3

In January, 2000, the Fitzgeralds submitted a new application to the Forest Service for use of FDR 56B. The Forest Service prepared a thirty-year private road easement with the

following notable conditions:

1. The Fitzgeralds were required to pay the fair

market value for the easement, set at $114.31

annually;

2. The Forest Service reserved the right to terminate the easement if it decided that the road

would not remain private, provided it replace the

easement with a comparable easement; and 

3. The Forest Service reserved the right to “suspend, revoke, or terminate” the easement pursuant to the Rules of Practice Governing Formal

Adjudicatory Administrative Proceedings instituted by the Secretary of Agriculture.4

3Fitzgerald v. United States, 932 F. Supp. 1195 (D. Ariz. 1996), vacated

as moot No. CIV-94-0518-PCT-PRG (D. Ariz. July 19, 1999). 

4

7 C.F.R. § 1.130-1.151. These rules provide for the filing and adjudication of an administrative complaint when, inter alia, an administrative

order is violated. 

THE FITZGERALD LIVING TRUST v. UNITED STATES 10467
The Fitzgeralds did not accept this easement and instead

filed suit under the Quiet Title Act, 28 U.S.C. § 2409a, and

the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-

706. In their complaint, the Fitzgeralds alleged, inter alia, the

following: (1) they have an easement by necessity, an implied

easement under the Homestead Act, and an express easement

over FDR 56B; and (2) the Forest Service’s issuance of the

FLPMA easement is arbitrary and capricious because it

restricts their common law rights of access and it deprives

them of their statutory right of access under the Alaska

National Interest Lands Conservation Act, 16 U.S.C.

§ 3210(a) (“ANILCA”),5 and their right to a permanent easement under the National Forest Roads and Trails Act

(“NFRTA”), 16 U.S.C. §§ 532-538. 

The district court granted summary judgment in favor of

the Forest Service, holding that the Forest Service has the

statutory authority under FLPMA and ANILCA to impose

restrictions on a private landowner’s ingress and egress over

national forest land and that the unrestricted use of FDR 56B

for many years did not trump this authority. The district court

concluded that the easement’s restrictions were reasonable,

and that the Forest Service did not abuse its discretion by

offering the Fitzgeralds an easement under FLPMA and not

pursuant to NFRTA. 

While the district court held that any common law rights to

an easement were preempted by statute, citing to Adams v.

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

5ANILCA, passed in 1980, directs the Secretary of Agriculture to provide access to private property within the boundaries of the National Forest System “as the Secretary deems adequate to secure to the owner the

reasonable use and enjoyment thereof” and provided that the “owner comply with rules and regulations applicable to ingress and egress” over the

federal land. 16 U.S.C. § 3210. In this respect, ANILCA is not limited to

national forest land located in the state of Alaska, but rather applies

nationwide. Mont. Wilderness Ass’n v. U.S. Forest Serv., 655 F.2d 951,

957 (9th Cir. 1981). 

10468 THE FITZGERALD LIVING TRUST v. UNITED STATES
(holding that “common law [easement] claims are preempted

by ANILCA and FLPMA where . . . the United States owns

the servient estate for the benefit of the public”), it also

reached the merits of the Fitzgeralds’ common law claims.

The court concluded that an easement by necessity did not

exist because FLPMA and ANILCA grant the Fitzgeralds

access to their property, obviating the necessity requirement

for such an easement. Moreover, it held that an implied easement did not exist because the Fitzgeralds’ right of access was

clearly expressed in those statutes, and, assuming arguendo

that an express easement was granted based on the 1920

patent language, it would still be subject to Forest Service

regulation. 

The Fitzgeralds appealed.6 We have jurisdiction under 28

U.S.C. § 1291 and we affirm.

II

This court reviews the district court’s grant of summary

judgment de novo. Buono v. Norton, 371 F.3d 543, 545 (9th

Cir. 2004); Universal Health Servs. Inc. v. Thompson, 363

F.3d 1013, 1019 (9th Cir. 2004). We must determine, viewing

the evidence in the light most favorable to the nonmoving

party, whether there are any genuine issues of material fact

and whether the district court correctly applied the relevant

substantive law. Olsen v. Idaho State Bd. of Med., 363 F.3d

916, 922 (9th Cir. 2004). 

6On February 26, 2003, Raymond and Nancy Fitzgerald transferred the

O’Haco Cabins Ranch property to the Fitzgerald Living Trust. On December 10, 2004, the Clerk substituted the Fitzgerald Living Trust for Raymond and Nancy Fitzgerald as parties to this appeal. Raymond and Nancy

Fitzgerald are trustees, and continue to use FDR 56B to access the property. For the sake of continuity, we continue to refer to the appellants as

“the Fitzgeralds.” 

THE FITZGERALD LIVING TRUST v. UNITED STATES 10469
III

The Fitzgeralds argue that they have a common law easement by necessity over FDR 56B, an easement implied from

the language contained in the Homestead Act, and an express

easement granted by the language of the 1920 land patent, and

because these easements establish preexisting rights of access,

they do not need to accept the Forest Service’s FLPMA easement to gain access to their property. Particularly, the Fitzgeralds object to the revocable nature of the FLPMA easement

and the annual fee imposed for its fair market value because

these conditions would fundamentally change the nature of

any common law interest they own over FDR 56B. 

[1] FLPMA and ANILCA clearly subject the Fitzgeralds’

access over Forest Service land to the statutory permitting

process. Adams II, 255 F.3d at 795. While the Forest Service

is correct to note that it has the authority under Adams II to

impose some regulations on the use of FDR 56B regardless of

any common law easement held by the Fitzgeralds, this still

leaves open the question of whether the regulations imposed

are reasonable. For such an inquiry, whether the Fitzgeralds

have a common law easement is relevant. For instance, government counsel acknowledged at oral argument that the fee

provision of the FLPMA easement would be unreasonable

under the APA if the Fitzgeralds owned a preexisting easement because the Forest Service would be imposing a fee for

something the Fitzgeralds already owned. Accordingly, we

will review the Fitzgeralds’ Quiet Title claims to determine

whether the proposed FLPMA easement is reasonable. 

[2] Skranak v. Castenada, 425 F.3d 1213 (9th Cir. 2005),

supports our conclusion that a determination of common law

rights is relevant to the reasonableness of the FLPMA easement. In Skranak, the owners of mining claims filed complaints in the district court under the Quiet Title Act and the

APA after the Forest Service denied them unconditional special use permits to access their claims. Id. at 1216. They chal10470 THE FITZGERALD LIVING TRUST v. UNITED STATES
lenged the Forest Service’s failure to resolve whether they

owned any pre-existing easements to their claims, arguing

that the Forest Service violated its own regulation, 36 C.F.R.

§ 251.114(f)(1), by refusing to do so.7Id. at 1218-19. The district court disposed of their common law easement claims by

concluding that neither plaintiff owned an easement under any

theory, and that even if either did, ANILCA extinguished

them. Id. at 1216. The court also denied plaintiffs’ APA

claims, concluding that the special use permit conditions were

reasonable. Id. 

This court reversed the district court’s APA determinations,

concluding that § 251.114(f) requires the Forest Service to

address the plaintiffs’ common law easement claims advanced

in their applications for a FLPMA permit. Id. at 1221. The

court recognized that requiring an easement-ownership determination under § 251.114(f) presented a potential conflict

with the holding in Adams v. United States (Adams I), 3 F.3d

1254, 1259 (9th Cir. 1993), that access under ANILCA is

determined without respect to any preexisting easements.

Skranak, 425 F.3d at 1219-20. Skranak resolved this potential

conflict by holding that deference to the Forest Service’s regulation was appropriate under National Cable & Telecommunications Ass’n v. Brand X Internet Services, 125 S. Ct. 2688

(2005). 425 F.3d at 1220. National Cable requires that deference be given to an agency’s interpretation of a statute unless

a prior court decision has held that the statute is incompatible

with the agency’s interpretation. 125 S. Ct. at 2700-01. It

explained that a prior judicial construction of a statute trumps

an agency’s interpretation only if a prior court decision

“leaves no room for agency discretion.” Id. at 2700. Because

neither Adams I nor Adams II held that ANILCA was unambiguous or that the court’s interpretation of ANILCA left no

7

36 C.F.R. § 251.114(f) provides: “[T]he authorizing officer, prior to

issuing any access authorization, must also ensure that: (1) The landowner

has demonstrated a lack of any existing rights or routes of access available

by deed or under State or common law.” 

THE FITZGERALD LIVING TRUST v. UNITED STATES 10471
room for agency discretion, Skranak held that the Adams

cases did not obviate the requirement that an easementownership determination be made under § 251.114(f). 425

F.3d at 1220. 

[3] Unlike the plaintiffs in Skranak, the Fitzgeralds do not

assert that the Forest Service violated the APA by failing to

determine their common law rights before issuing the FLPMA

easement. Nevertheless, Skranak is important because it

instructs that the existence of a preexisting easement, as

claimed by the Fitzgeralds, is relevant to the Forest Service’s

issuance of a statutory easement under FLPMA.

IV

An Implied Easement Under the Homestead Act

The Fitzgeralds argue that Congress granted settlers under

the Homestead Act an implied easement to access their land,

maintaining that the right is implied from the statutory language entitling persons “to enter . . . unappropriated public

lands” to establish homesteads. 43 U.S.C. § 161 (repealed

1976). The Fitzgeralds contend that, like statutory railroad

land grants, the Homestead Act should be construed liberally,

and that without an implied right to cross public lands freely,

a homesteader could not settle the land as Congress intended.

The Forest Service responds by pointing to the rule that

unless the language in a land grant is clear and explicit, the

grant will be construed to favor the government so that nothing passes by implication, citing to Watt v. Western Nuclear,

Inc., 462 U.S. 36, 59 (1983), Andrus v. Charlestone Stone

Products Co., 436 U.S. 604, 617 (1978), and Albrecht v.

United States, 831 F.2d 196, 198 (10th Cir. 1987). It also

urges that implying an easement into the Homestead Act

would render meaningless language in the Forest Service

Organic Administration Act of 1897, 16 U.S.C. §§ 473-482,8

8The 1897 Organic Act authorized the Secretary of Agriculture to make

rules and regulations to protect the national forests. 16 U.S.C. §§ 473-482.

10472 THE FITZGERALD LIVING TRUST v. UNITED STATES
FLPMA, and ANILCA that provides for express rights of

access to inholders. 

[4] While we accept the Fitzgeralds’ argument that the

Homestead Act contemplated an inholder’s access to his property over public lands, we agree with the Tenth Circuit’s holding in United States v. Jenks, 129 F.3d 1348, 1354 (10th Cir.

1997), that the access across government lands implied into

the Homestead Act is not an implied easement. Jenks concluded that settlers had an implied license to use public lands

to access their property, relying on Buford v. Houtz, 133 U.S.

320 (1890). 129 F.3d at 1354. Burford described the access to

public lands in the nineteenth century as an implied license

growing out of custom where lands were left open and no act

of government forbade their use. 133 U.S. at 326. Importantly, the Court later clarified that the use of public lands to

graze livestock did not confer any vested right on the public.

See Light v. United States, 220 U.S. 523, 535 (1911). Given

the custom of unfettered use of public lands in 1862 when

Congress passed the Homestead Act and the Supreme Court’s

refusal to characterize a settler’s use of public lands as a

vested property right, we conclude that Congress did not

imply an easement over public lands into the 1862 Homestead

Act. 

[5] In sum, we hold that the Homestead Act did not grant

settlers a vested property right of access over public lands to

their homesteads, but instead merely sanctioned the longstanding customary use of public lands by a settler. Moreover,

we reject the Fitzgeralds’ assertion that even if the Homestead

Act only established an implied license for a settler to access

his homestead, the license was transformed into an easement

when, in 1920, the Fitzgeralds’ predecessor-in-interest

obtained the patent to the O’Haco Cabins Ranch. The FitzgerThe Act protects the egress and ingress over the national forests of settlers

residing within the boundaries of the forests. 16 U.S.C. § 478. 

THE FITZGERALD LIVING TRUST v. UNITED STATES 10473
alds cite to no authority that the grant of a patent changes the

nature of a settler’s access to his homestead into a vested

property right, and we have found none. Our conclusion is

also supported by the 1897 Organic Act and ANILCA, providing for a right of access over federal land. Indeed, if the

Homestead Act granted a vested access right over federal

land, there would have been no need for Congress to subsequently provide for such a right. 

Easement by Necessity

The Fitzgeralds rely on United States v. Dunn, 478 F.2d

443 (9th Cir. 1973), and Jenks to suggest that it is well-settled

that an easement by necessity against the United States exists.

We do not agree. In Dunn, successors-in-interest to a Southern Pacific Railroad Company land patent challenged the district court’s summary judgment for the United States that

rejected the plaintiffs’ claim to an easement by implication

and necessity. Id. at 444-46. We reversed, concluding that a

question of fact existed as to the necessity and the scope of

the easement. Id. at 446. The government did not argue in

Dunn that an easement by necessity was unavailable against

the United States. Id. at 444 n.2. However, the dissenting

judge concluded that the doctrine of easement by necessity

was not binding on the United States under the facts presented

in that case. Id. at 446 (Wright, J., dissenting). The majority

responded to the dissent’s position by stating in a footnote

that “[s]ince the government did not, in our judgment, raise

the point . . . we have not discussed it in the opinion,” but

went on to say “nevertheless [we] did give it due consideration and concluded that it lacked merit.” Id. at 444 n.2. We

read this statement as declining to render a holding on the

question because it was not properly raised, while expressing

the tentative views of the panel majority on the question.

Thus, Dunn is at most persuasive authority for the argument

that an easement by necessity may be taken against the United

States when it owns the servient tenement. 

10474 THE FITZGERALD LIVING TRUST v. UNITED STATES
Moreover, in Jenks the Tenth Circuit did not decide

whether successors-in-interest to land patented under the

Homestead Act obtained an easement by necessity against the

United States because it concluded instead that a necessity did

not exist in that case. 129 F.3d at 1353. Jenks acknowledged

the differing views regarding an easement by necessity

against the United States, citing to a property treatise favoring

the recognition of an easement by necessity against the United

States, and a 1980 United States Attorney General Opinion

concluding that the common law easement by necessity does

not apply to federal lands. Id. at 1354 (citing 4 Richard R.

Powell, Powell on Real Property § 34.07 at 34-76 (rev. ed.

1997), and Rights-of-Way Across Nat’l Forests, 43 Op. Att’y

Gen. 243, 255 (1980)). 

[6] We find ourselves in the same position as the Jenks

court—not having to decide now whether, as a matter of law,

an easement by necessity may be taken against the United

States. This is because the Fitzgeralds do not meet the common law elements of an easement by necessity. 

[7] An easement by necessity is created when: (1) the title

to two parcels of land 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), 4 Richard R. Powell, Powell on Real

Property § 34.07 (2006). An easement by necessity is not

defeated by the grantee’s ability to access a public road over

a stranger’s property. Powell, supra, at § 34.07[1], [3]. Moreover, the easement is extinguished once the necessity is no

longer present. Id. at § 34.19. 

[8] The Fitzgeralds argue that they have an easement by

necessity over FDR 56B because when the United States

granted the patent to Tillman in 1920, the O’Haco Cabins

Ranch was surrounded by land owned by the United States or

THE FITZGERALD LIVING TRUST v. UNITED STATES 10475
by third parties. This argument fails because, in addition to

any right of access provided by the 1897 Organic Act,

FLPMA and ANILCA provide statutory rights of access that

would destroy any easement by necessity. Jenks, 129 F.3d at

1353-54. 

An Express Easement Under the 1920 Patent

The Fitzgeralds argue that they own an express easement

over FDR 56B based on the language “with the appurtenances

thereof” contained in the 1920 patent to Tillman.9 They urge

that this language grants all things necessary for the use and

enjoyment of the land and that an easement over the Sitgreaves National Forest was included as an appurtenance to

the O’Haco Cabins Ranch because without this easement, the

land would be worthless. 

[9] The Tenth Circuit rejected this argument in Jenks. Jenks

concluded that an express easement was not created by the

inclusion of the words “with the appurtenances thereof.” 129

F.3d at 1355. We agree. While the word “appurtenance” will

carry with it an existing easement, it will not create the easement. Humphreys v. McKissock, 140 U.S. 304, 314 (1891);

see also 25 Am Jur 2d Easements and Licenses in Real Property § 15 (2004) (“The intent to grant an easement must be so

manifest on the face of the instrument . . . that no other construction can be placed on it.”). Even assuming that the rough

trail noted in the 1916 survey became FDR 56B, we conclude

that the language “with the appurtenances thereof” lacks the

intent and the specificity to convey an easement over the trail.

9The patent to the O’Haco Cabins Ranch reads: 

NOW KNOW YE, That there is, therefore, granted by the

UNITED STATES unto the said [grantee] the tract of Land above

described; TO HAVE AND TO HOLD the said tract of Land,

with the appurtenances thereof, unto the said [grantee] and to the

heirs and assigns of the said [grantee] forever[.] 

10476 THE FITZGERALD LIVING TRUST v. UNITED STATES
V

[10] The Constitution provides Congress with the authority

to “make all needful Rules and Regulations respecting the . . .

Property belonging to the United States.” U.S. Const. art. IV,

§ 3, cl. 2. The fair market value annual fee mandated by

FLPMA is within the bounds of Congressional authority.

Because the Fitzgeralds do not have a common law easement

over FDR 56B, they are not being required to pay an annual

use fee for something they already own. Except for their dispute over whether they already own the easement, the Fitzgeralds do not challenge the Forest Service’s calculation of the

fee. Accordingly, we conclude that the $114 annual use fee is

reasonable. 

[11] We conclude further that the conditions in the easement providing for the suspension, revocation, or termination

of the easement also are reasonable. FLPMA vests the Forest

Service with the discretion to restrict the “duration, . . . transfer or assignment, and termination” of a FLPMA easement.

43 U.S.C. § 1764(c). A termination provision conditioned

upon the Forest Service’s issuing a replacement easement or

the initiation of administrative proceedings based on a violation of the easement is reasonable. 

VI

[12] Lastly, the Fitzgeralds challenge the Forest Service’s

refusal to provide them with an easement under NFRTA.

NFRTA was passed out of concern for the construction and

maintenance of roads and trails within and near the national

forests to meet the increasing demands for timber, recreation,

and other uses of the national forests. 16 U.S.C. § 532. It provides for the granting of easements to applicants who are participating in the construction and maintenance of the national

forest road system. H.R. Rep. 88-1920 (1964). These easements are provided without cost. 

THE FITZGERALD LIVING TRUST v. UNITED STATES 10477
[13] The Fitzgeralds are not entitled to a NFRTA easement

because they are not using FDR 56B to assist the Forest Service in managing the Sitgreaves National Forest. Given the

intent of the statute, there is no support for the Fitzgeralds’

argument that the Forest Service erred by failing to exercise

its discretionary power to provide a NFRTA easement or by

failing to offer any reason for not doing so. 

VII

[14] FLPMA vests the Secretary of Agriculture with the

authority to regulate access over the Sitgreaves National Forest. 43 U.S.C. § 1761(a). The FLPMA easement offered to the

Fitzgeralds, who hold no common law easements over the forest service land, is a reasonable exercise of that authority.

Accordingly, the district court’s judgment is AFFIRMED. 

10478 THE FITZGERALD LIVING TRUST v. UNITED STATES