F I L E D

United States Court of Appeals

Tenth Circuit

NOV 17 1997

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

 

UNITED STATES OF AMERICA,

Plaintiff-Counter-DefendantAppellee,

v. No. 96-2106

RANDOLPH JENKS,

Defendant-Counter-ClaimantAppellant.

 

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

(D.C. No. CIV-90-480-JP)

 

William B. Lazarus, Department of Justice, Washington, D.C. (Lois J. Schiffer, Assistant

Attorney General and Robert L. Klarquist, Department of Justice, Washington, D.C., and

John W. Zavitz, Assistant United States Attorney, Albuquerque, New Mexico, with him

on the brief), for Plaintiff-Counter-Defendant-Appellee.

Steven J. Lechner (William Perry Pendley with him on the brief), of Mountain States

Legal Foundation, Denver, Colorado, for Defendant-Counter-Claimant-Appellant.

 

Before PORFILIO, ANDERSON, and BALDOCK, Circuit Judges.

 

BALDOCK, Circuit Judge.

 
2

Defendant Randolph Jenks owns three ranches in Catron County, New Mexico--

Centerfire Bog Ranch, Double J. Ranch, and Patruff Ranch. All three ranches are

“inholdings” in that they are encompassed within the Apache National Forest and Gila

River Forest Reserve. Consequently, Jenks must cross federal lands to reach each of his

three ranches. Jenks may reach Centerfire Bog Ranch by Centerfire Bog Road, as well as

by a northern access road in good weather. His access to Double J. Ranch and Patruff

Ranch, however, is limited via Double J. Road and Patruff Road, respectively.

I.

Problems arose over a decade ago when the government told Defendant that he

had to apply for and obtain “special use permits” or “private road easements” granting

him access over the Centerfire Bog, Double J., and Patruff Roads, pursuant to the Alaska

National Interest Lands Conservations Act of 1980 (ANILCA), 16 U.S.C. §§ 3101-3233.

Section 3210(a) of ANILCA provides:

 Notwithstanding any other provision of law, and subject to such terms and

conditions as the Secretary of Agriculture may prescribe, the Secretary shall

provide such access to nonfederally owned land within the boundaries of

the National Forest System as the Secretary deems adequate to secure to the

owner the reasonable use and enjoyment thereof: Provided, That such

owner comply with rules and regulations applicable to ingress and egress to

or from the National Forest System.

16 U.S.C. § 3210(a). Jenks, however, refused to comply with the government’s demands.

The government then instituted this lawsuit to (1) quiet title in the three roads, (2) enjoin

Defendant’s use of the access roads without proper authorization, and (3) compel
1

 The history leading to the enactment of ANILCA and the FLPMA is set forth in

United States v. Jenks, 22 F.3d 1513, 1515-1516 (10th Cir. 1994) (Jenks I).

3

Defendant’s compliance with ANILCA. Defendant counterclaimed to quiet title in

himself, alleging preexisting patent and common law rights of access to his ranches via

the roads. That was in the spring of 1990.

On cross motions for summary judgment, Fed. R. Civ. P. 56, and the parties’ joint

stipulation of facts, the district court held that even assuming Defendant had some

preexisting legal right of access over the roads, the government could still impose

reasonable rules and regulations upon that access pursuant to ANILCA and the Federal

Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. §§ 1701-1784. United

States v. Jenks, 804 F. Supp. 232, 236 (D.N.M. 1992), reversed in part 22 F.3d 1513 (10th

Cir. 1994).1 The district court further held that the conditions contained in the

government’s proposed special use permits, which, among other things, regulated the use

of the roads and required payment of a user’s fee, were reasonable. Jenks, 804 F. Supp.

at 237.

The district court reasoned that “[a]ccording to the legislative history of ANILCA,

Congress intended that . . . [inholders] ‘had the right of access to their lands subject to

reasonable regulation by the Secretary of Agriculture in the case of national forests under

the [FLPMA].’” Jenks, 804 F. Supp. at 235 (internal ellipses omitted) (quoting S. Rep.

No. 96-413 at 310, reprinted in 1980 U.S.C.C.A.N. 5070, 5254). Section 1761(a) of the
4

FLPMA provides that the “Secretary of Agriculture, with respect to lands within the

National Forest System . . . [is] authorized to grant, issue, or renew rights of way over,

upon, under, or through such lands . . . .” Id. § 1761(a). Section 1764(c) of the FLPMA

further provides:

 Rights-of-way shall be granted, issued, or renewed pursuant to this

subchapter under such regulations or stipulations, consistent with the

provisions of this subchapter or any other applicable law, and shall also be

subject to the terms and conditions as the Secretary concerned may

prescribe regarding extent, duration, survey, location, construction,

maintenance, transfer or assignment, and termination.

Id. § 1764(c). Accordingly, the district court entered summary judgment in favor of the

government and enjoined Defendant’s use of the access roads without proper

authorization. Defendant appealed.

In United States v. Jenks, 22 F.3d 1513 (10th Cir. 1994) (Jenks I), we affirmed in

part, modified in part, vacated in part, and reversed in part, the decision of the district

court. In Jenks I, the parties agreed that Defendant had rights of access over the three

roads. The parties disagreed, however, as to the source and extent of those access rights.

Defendant continued to refuse to apply for special use permits, claiming that his

preexisting patent and common law rights exempted him from ANILCA-authorized

procedures. We disagreed with Defendant, and held that “regardless of Defendant’s

patent or common law rights, he must apply for a special use permit as provided for in

36 C.F.R. § 251.112(a),” which requires an inholder to apply for access across national

forest lands. Jenks, 22 F.3d at 1517-18.
5

While we agreed with the district court that Defendant must apply for special use

permits, we concluded that the court failed to give Defendant’s patent and common law

claims proper consideration. In reaching this conclusion, we relied on 36 C.F.R.

§ 251.114(f)(1), which requires the officer authorizing a special use permit to ensure that

the inholder “has demonstrated a lack of any existing rights . . . of access available by

deed or under State or common law.” Thus, the permit process expressly required a

determination of Defendant’s patent and common law rights of access.

Because under § 251.114(f)(1), the government might not legitimately be able to

require special use permits if Defendant could demonstrate preexisting rights of access,

we also concluded that the district court’s order enjoining Defendant’s use of the roads

until he obtained use permits was improper. We therefore modified the district court’s

injunction and enjoined Defendant’s use of the access roads only until he applied for

special use permits as required by 36 C.F.R. § 251.112(a).

Finally, we concluded in Jenks I that the district court’s finding that the terms of

the special use permits were reasonable was rendered moot by the government’s change

of position on appeal. The government’s position before the district court was that the

conditions for issuance of the permits to Defendant were non-negotiable. On appeal,

however, the government informed us that the special use permit presented to Defendant

“was merely a proposal and was subject to negotiation and that there was no indication

that this permit, unamended, was going to be the permit for Defendant.” Jenks, 22 F.3d at
6

1520 (internal quotations, ellipses, and brackets omitted). Accordingly, we vacated the

district court’s finding that the terms of the proposed permits were reasonable.

Following Jenks I, Defendant applied for special use permits over the Centerfire

Bog, Double J., and Patruff Roads. The government, however, offered Defendant special

use permits only under the terms of its original proposal, thus again changing its position

as to the negotiability of the permits’ conditions. The Deputy Regional Forester upheld

the government’s position. The parties again filed cross motions for summary judgment

in the district court, and the government again prevailed. The district court rejected

Defendant’s claim to preexisting patent and common law rights of access to his ranches,

again held that the conditions contained in the proposed special use permits were

reasonable, and again enjoined Defendant’s use of the access roads. Defendant again

appealed. Our jurisdiction arises under 28 U.S.C. § 1291. We review a grant of summary

judgment de novo. Mesa Oil, Inc. v. Insurance Co. of North America, 123 F.3d 1333,

1336 (10th Cir. 1997).

II.

Before addressing the merits of Defendant’s appeal, we initially note our

agreement with the district court’s statement on remand that “[t]he United States’

flip-flopping of its position relating to the negotiability of the permit terms has resulted in

an enormous waste of judicial resources.” United States v. Jenks, No. Civ-90-480,

unpublished order at 3 (D.N.M., filed Feb. 12, 1996). The government’s waffling caused
7

the district court to rule a second time on a question which we would have resolved in

Jenks I absent the government’s misrepresentations. Moreover, the government’s

inability to take a firm but fair stand in dealing with Defendant for whatever reason tends

only to erode confidence in its decision-making process, and undermine the perceived

legitimacy of its ultimate decision.

Seemingly unaffected by the district court’s displeasure or this court’s growing

impatience, the government now tells us not only that the district court’s finding that the

terms of the special use permits were reasonable is moot, but also that the government’s

entire complaint regarding Defendant’s use of the access roads is moot. Thus, the

government asks us to (1) again vacate that portion of the district court’s order on remand

addressing the reasonableness of the proposed permits’ conditions, (2) dissolve the

district court’s injunction prohibiting Defendant’s use of the access roads, and (3) order

the government’s complaint dismissed without prejudice. This all comes about because

the government granted thirty-year public road easements to Catron County, New

Mexico, for use of the three access roads on the same day Defendant filed his notice of

appeal from the district court’s order on remand. Thus, Defendant may for the time being

use the three roads to access his ranches free of any conditions or fees whatsoever.

Defendant agrees that the government’s claims are moot, and we are constrained to

agree as well. When claims become moot while an appeal is pending through

circumstances attributable to one of the parties, in this case the government, it is our duty
2

 To avoid confusion, we expressly note that our decision in Jenks I, 22 F.3d at

1513, is not affected by our present decision to order the government’s complaint

dismissed as moot. Jenks I thus remains binding law.

8

to determine whether vacatur is appropriate based on the particular circumstances. 

McClendon v. City of Albuquerque, 100 F.3d 863, 868 (10th Cir. 1996). Because the

government prevailed below on its claims that the conditions contained in the proposed

special use permits were reasonable and Defendant should be enjoined from using the

access roads until he obtained the requisite permits, and then caused those issues to

become moot, effectively barring appellate review, we cannot permit the district court’s

decision on those issues to stand. As the Supreme Court explained in U.S. Bancorp

Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 25 (1994), a party unable to seek

review on the merits of an adverse ruling because of the unilateral action of the prevailing

party, “ought not in fairness be forced to acquiesce in the judgment.” Vacating the

district court’s finding that the terms of the special use permits were reasonable,

dissolving its injunction prohibiting the Defendant’s use of the access roads, and ordering

it to dismiss the government’s complaint without prejudice will allow, if necessary, future

relitigation of the government’s claims, and eliminate a decision against Defendant,

which is unreviewable due to the government’s actions.2

III.
9

But the controversy does not there end. Both parties agree that Defendant’s

counterclaim against the government remains viable, and we are of a like opinion.

Defendant seeks to quiet title to the access roads pursuant to 28 U.S.C. § 2409a(a), which

provides in relevant part: “The United States may be named as a party defendant in a

civil action under this section to adjudicate a disputed title to real property in which the

United States claims an interest . . . .” Defendant’s action under § 2409a(a), however, is

subject to the twelve year statute of limitations contained in subsection (g):

Any civil action under this section . . . shall be barred unless it is

commenced within twelve years of the date upon which it accrued. Such

action shall be deemed to have accrued on the date the plaintiff or his

predecessors in interest knew or should have known of the claim of the

United States.

Id. § 2409a(g). Defendant’s claims of preexisting patent and common law rights of

access over the roads are ripe for decision under § 2409a(a) because both Defendant and

the government plainly claim an interest in those roads. See H.R. 92-1559 (1972),

reprinted in 1972 U.S.C.C.A.N. 4547, 4552 (indicating that Congress intended easements

to be included in real property rights adjudicated in a quiet title action under § 2409a). If

we were to wait until the public road easements to Catron County lapsed or otherwise

terminated before addressing Defendant’s claims, those claims might then be time-barred

under § 2409a(g). Accordingly, we proceed to the merits of Defendant’s claims.

Defendant claims a right of access over the Centerfire Bog, Double J., and Patruff

Roads free from government interference under three theories: (1) easement by necessity,
10

(2) easement by implication, and (3) easement by express grant. The district court

rejected each of Defendant’s three theories. The court first ruled that because ANILCA

and the FLPMA gave Defendant statutory rights of access over the roads, the “necessity”

required to create easements by necessity did not exist. The court next ruled that those

same statutory rights of access indicated that the government did not intend to grant

Defendant’s predecessors in title easements by implication for use of the access roads.

Finally, the court ruled that the patents which the government granted to Defendant’s

predecessors in title “with the appurtenances thereof” did not convey access easements

over the roads. We consider each of the district court’s three rulings in turn.

A.

Where a landowner conveys to another an inner portion of land and retains the rest,

the common law presumes that the grantee has a right to pass over the retained property if

such passage is necessary to reach the granted property. See Leo Sheep Co. v. United

States, 440 U.S. 668, 679 (1979). This right is known as an implied easement by

necessity, and is founded in a public policy favoring utilization of land. See generally

4 Richard R. Powell, Powell on Real Property § 34.07 (rev. ed., 1997). As we stated in

Kinscherff v. United States, 586 F.2d 159, 161 (10th Cir. 1978), a case in which

landowners claimed an easement by necessity over government lands: “The scope and

extent of the right of access depends upon what must, under the circumstances, be

attributable to the grantor either by implication of intent or by operation of law founded in
11

a public policy favoring land utilization.” (internal quotations and ellipses omitted).

Whether Defendant’s predecessors in title received easements by necessity when they

took title to the ranches from the government, however, is of little import at this point.

This is because “[e]asements by necessity have an implied purpose to make possible the

utilization of the dominant land, and such easements expire as soon as the necessity no

longer exists.” 4 Powell, supra, § 34.19 at 34-240, 241.

Defendant simply does not need an easement by necessity to access his ranches.

Presently, the public road easements which the government granted to Catron County in

the Centerfire Bog, Double J., and Patruff Roads give Defendant an unconditional right of

access to his ranches. If and after those easements lapse or terminate, Defendant in all

likelihood will still have a statutory right of access under ANILCA and FLPMA, or some

other federal statutory scheme, albeit subject to reasonable government regulation. For

instance, ANILCA presently states that “[n]otwithstanding any other provision of law . . .

the Secretary shall provide . . . access to nonfederally owned land within the boundaries

of the National Forest System . . . .” 16 U.S.C. § 3210(a) (emphasis added). If both the

public road easements and statutory rights of access cease to exist, however, Defendant

might successfully claim easements by necessity See 4 Powell, supra, § 34.07 at 34-76

(better view is that public policy favoring land utilization applies where the original unity

of ownership was in the government, as well as where such ownership was in a private

individual); but see Rights-of-Way Across Nat’l Forests, 43 Op. Att’y Gen. 243, 255
3

 The district court also found that Defendant did not have an easement by

necessity in the Centerfire Bog Road because he could access the Centerfire Bog Ranch,

albeit with difficulty, via a northern access road with a four-wheel drive vehicle. Because

Defendant presently has a right to access the Centerfire Bog Ranch via the Centerfire Bog

Road, we need not decide whether absent that right the northern access road might be

sufficient to overcome Defendant’s claim to an easement by necessity in the Centerfire

Bog Road.

12

(1980) (common law doctrine of easement by necessity does not apply to federal lands). 

But we need not now decide that hypothetical and unlikely situation.3

B.

Defendant also asserts that the land patents the government granted his

predecessors in title contained implied easements for use of the access roads. According

to Defendant, the language of the Homestead Act of 1862, which granted 160 acres of

land to individuals who agreed to live on and make improvements to the land for five

years, “supports the conclusion that Congress intended to grant an implied easement for

access to lands patented thereunder.” See Act of May 20, 1862, ch. 75, 12 Stat. 392

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

To be sure, throughout our nation’s western expansion, a right of access across

government lands was implied if necessary to effectuate the purpose for which an

inholding was granted. But it does not follow that the right of access accompanying the

grant of an inholding was necessarily a property interest known as an implied easement.

We implicitly rejected such a proposition in Jenks I when we stated: “Although the

Homestead Act made no provision for access to and from granted land over the retained
13

lands of the United States, it was presumed that ‘an implied license’ to use public lands

would provide settlers with unimpeded access to their property.” Jenks, 22 F.3d at 1515.

See Buford v. Houtz, 133 U.S. 320, 326 (1890) (private landowners have an implied

license, growing out of custom, to use public lands where lands are left open and no act of

government forbids their use).

Under the Constitution, Congress has the authority and responsibility to manage

federal lands. U.S. Const. art. IV, § 3 (“Congress shall have power to . . . make all

needful Rules and Regulations respecting . . . Property belonging to the United States

. . . .”). Nothing in the Homestead Act of 1862 suggests that Congress intended to

abrogate its right to regulate access over roads located on federal lands. Moreover, our

conclusion that Congress maintained the right as holder of the servient tenement to

impose reasonable rules and regulations upon the use of access roads, as it has done

through the enactment of ANILCA and the FLPMA, is consistent with the principle that

“[i]n a public grant nothing passes by implication, and unless the grant is explicit with

regard to the property conveyed, a construction will be adopted which favors the

sovereign.” Abrecht v. United States, 831 F.2d 196, 198 (10th Cir. 1987). Thus, we

reject Defendant’s argument that he has implied easements for use of the access roads

free from reasonable government regulation. This is not to say, however, that the

government’s imposition of onerous requirements on inholders seeking access rights

which are unrelated or disproportionate to any expected public benefit will never
14

constitute arbitrary and capricious conduct in violation of law. See Rights-of-Way Across

Nat’l Forests, 42 Op. Att’y Gen. 127, 147 (1962).

C.

Finally, Defendant argues that the patents of his predecessors in title expressly

grant him easements in the access roads because they grant “said tract of Land with the

appurtenances thereof.” Defendant states the general rule that when land is granted with

“appurtenances,” the grantee receives that which is necessary for the use and enjoyment

of the land, see Restatement of Property § 453 (1944), and asks what could be more

important for the use and enjoyment of land than an easement for access.

Although difficult to discern from the parties’ convoluted joint stipulation of facts,

the Patruff Road may have existed at the time Defendant’s predecessors took title to the

Patruff Ranch from the government. The Centerfire Bog and Double J. Roads, however,

do not appear to have existed, at least in their present form, at the time Defendant’s

predecessors took title from the government. We fail to see how Defendant’s

predecessors in title received express access easements over roads which did not exist at

the time of the government’s conveyance.

Nevertheless, even assuming all three access roads existed at the time of the

government’s patents, we do not believe the language “with the appurtenances thereof”

sufficient to grant Defendant and his predecessors in title express easements over the

access roads as against the government. We have already noted that unless a public grant
15

explicitly conveys property, we will construe the grant in favor of the government. 

Abrecht, 831 U.S. at 198. More importantly, access easements amounting to property

interests were not necessary for the use and enjoyment of the land, because, as we

previously concluded in Jenks I, Defendant’s predecessors in title had an implied license

to use public lands for “unimpeded access to their property.” Jenks, 22 F.3d at 1515.

Accordingly, the district court’s injunction prohibiting Defendant’s use of the

access roads is DISSOLVED. The district court’s judgment is AFFIRMED IN PART and

VACATED IN PART. The cause is hereby REMANDED to the district court for further

proceedings consistent with this opinion.