Rights-of-Way Across National Forests

T he A ct of June 4, 1897, does not grant a right o f access to owners of land surrounded 

by national forests, other than actual settlers, and the Secretary of A griculture has 

discretionary authority to deny such access unless a right otherw ise exists.

T he common law doctrine of easement by necessity does not apply to land owned by the 

federal government, but a right of access may be implied from the terms of a federal 

land grant in some circumstances. No statutes currently modify any such implied right 

found to exist.

Absent a prior existing access right, the Secretary of A griculture may deny “adequate 

access” to land within a national forest wilderness area, but must offer a land exchange 

as indemnity.

June 23, 1980

T h e S e c r e t a r y o f A g r i c u l t u r e

M y D e a r M r . S e c r e t a r y : This replies to your letter of September 18, 

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) Whether 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 surrounded 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;

1 A ct o f J u n e 4. 1897, ch . 2. § 1. 30 S tat. 36 (co d ified at 16 U .S.C . § 478).

-A s used in this opinion, th e term “ p riv a te la n d o w n e rs" refers to all non fed eral lan d o w n ers unless 

o th e rw ise indicated.

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), authorizes 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

3A n “ in h o ld er" is a lan d o w n er w h o se p ro p erty is co m p letely su rro u n d ed by p ro p e rty o w n ed by 

the U nited States. A gain, as used in this opin io n th e term “ p riv ate inholder*’ refers to all nonfederal 

inholders.

4 T h e p o w er to c o n tro l public lands is g ran ted to C o n g ress by th e C o n stitu tio n :

T h e C o n g ress shall h av e P o w e r to D ispose o f and m ake all needful R ules and 

R egulations resp ectin g th e T e rrito ry o r o th e r p ro p erty b elo n g in g to th e U nited 

S ta le s .. . .

U.S. C onst.. A rt. IV , § 3, cl. 2. T h is co m p reh en siv e con g ressio n al a u th o rity o v e r public lands in clu d es 

th e p o w er to p rescrib e th e tim es, co n d itio n s, and m o d e o f tran sfer (U nited States v. Gratiot. 39 U .S. (14 

Pet.) 526, 537-38 (1840)); to d ec lare th e effect o f title em an atin g from th e U nited S tates (Bagnell v. 

Broderick, 38 U .S. (13 P et.) 436, 450 (1839)); an d to p rev en t unlaw ful o c c u p atio n o f p u b lic p ro p erly

(C a m field v. U nited Stoles. 167 U.S. 518, 525 (1897)). In Kleppe v. N ew M exico. 426 U .S. 529, 539 

(1976), the C o u rt stated : “ (W jhile th e fu rth est reach es o f p o w er g ran ted by th e P ro p e rty C lau se h av e 

not yet been definitely reso lv ed , w e h av e rep eated ly o b serv ed th at th e p o w er o v e r public lands thus 

en tru sted to C on g ress is w ith o u t lim itation."

31
of land surrounded by national forest reserves. Section 478, the codification 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 national forests, or from crossing the same to and from their 

property or homes; and such wagon roads and other improvements may be constructed thereon as may be necessary 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 national 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. 

Att’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 landowners, 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 entities.5 He further concluded that the Secretary of Agriculture has discretionary 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) construc5 B etw een th e ex trem es o f th e o rig in al settler an d co rp o ra tio n s o r business en tities are in term ed iary 

ty p es o f p ro p e rty o w n ers su ch as h eirs o r assigns o f an actu al settler. T h e 1962 opinion did not 

co n sid er w h e th e r those in term ed iary p ro p e rty o w n e rs are “ actual se ttlers” w ith in th e m eaning o f the 

A ct. 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 presented, therefore, is whether the Secretary’s regulations may, in appropriate 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 Service 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 ct o f M ay 29, 1830, 4 Stal. 420-21, first g ran ted preem p tio n rights to settlers. U n d er its 

term s, any person w h o had settled on th e public dom ain and had cu ltiv ated a tract o f land w as 

au th o rized to p u rch ase any num b er o f acres up to a m axim um o f 160 acres upo n paying to th e U nited 

S tates a m inim um p rice for Che land.

7 T h e first hom estead ac t w as passed in 1862. A c t o f M ay 20, 1862, 12 S tat. 392-93. It p ro v id e d that 

certain persons could en ter u n ap p ro p riated public lands and, upon satisfying certain co n ditions, obtain 

a G o v ern m en t p aten t therefor.

8T h e M ining L aw o f 1866 (A ct o f Ju ly 26, 1866, ch . 262, 14 Stat. 251) o p en ed m ineral d eposits on 

public lands to exploration, claim , and o ccu p atio n . T h e o nly specific referen ce to rights-of-w ay 

app eared in § 8, w h ich g ran ted a rig h t-o f-w ay fo r th e co n stru c tio n o f h ig h w ay s o v e r public lands not 

reserved fo r public uses. T h e M ineral L o catio n L aw o f 1872 (A ct o f M ay 10, 1872, ch. 752, 17 Stat. 

91-96) did not m ention access across th e public dom ain. F ro m th e o u tset, h o w ev er, federal m ining 

law s h ave been co n stru ed as an invitation to en ter, d isco v er, and lo cate claim s upon public lands not 

w ith d ra w n o r reserved. See, e.g.. Union O il Co. v. Sm ith, 249 U.S. 337, 346-47 (1919); U nited S tates v. 

Carlile. 67 l.D . 417, 421 (1960). See generally J. L o n erg an , Access to Interm ingled M ineral Deposits,

M ining C laim s a n d Private L a n d s Across Surrounding Public D om ain a n d N a tio n a l Forest L ands. 8 L and

& W ater L. Rev. 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, growing 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 Government, 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 privilege 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 Reserve 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 ection 24 p ro v id ed :

[T]he P resident o f th e U nited S tates m ay, from tim e to tim e, set ap art and reserve, in 

an y S tate o r T e rrito ry h av in g public land b earin g forests, an y part- o f th e public lands 

w h o lly o r in part c o v e re d w ith tim b er o r u n d erg ro w th , w h e th e r o f co m m ercial value 

o r not, as public reserv atio n s, and th e P resident shall, by public p ro clam atio n , d eclare 

th e establishm ent o f such reserv atio n s and th e lim its thereof.

l0S om e S en ato rs expressed co n c ern ab o u t not k n o w in g ex actly w h at w as in .th e rep o rt, but the 

m ajo rity felt that in th e clo sin g d ays o f th e session “ th ere has got to be so m eth in g taken for g ran ted o r 

else th e public business can n o t g o fo rw ard as it should.*’ 22 C o ng. Rec. 3546-47 (1891). T h e b rie f 

H ouse d eb ate ap p ears at 22 C o n g . R ec. 3613-16 (1891).

34
reserves was not defined, nor were guidelines provided for the management 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 settlers 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 individuals, but for the purpose of permitting existing communities in the 

United States to enjoy the privileges which have ordinarily been accorded to the pioneer settlers on the frontier everywhere.” Id. at 902. 

Other Senators also criticized the provision prohibiting entry or settlement 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 congressmen 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 introduced 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 am endm ent tem p o rarily resto red th e w ith d ra w n lands to th e public d om ain by suspending 

th e o p eratio n o f th e presidential p ro clam atio n s for ap p ro x im ately o n e year. 30 C o ng. R ec. 899-900 

(1897). It also clarified th e P resid en t’s a u th o rity to revoke, m odify, o r suspend such proclam ations.

,2F o r a co m p lete discussion o f this legislative histo 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 “whatever 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 reasonable 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-ofway 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 preserve 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 Attorney General.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:

,3Section 504 o f F L P M A . 43 U .S.C . § 1764, d ire cts ih e S ecretary to issue reg u latio n s w ith resp ect 

to th e term s and co n d itio n s o f th e rights-of-w ay. S ectio n 505, 43 U .S.C . § 1765, requires, inter alia, th at 

each righ t-o f-w ay perm it co n tain term s and co n d itio n s w h ich w ill "p ro te c t th e environm ent.*' “ p ro tect 

F ed eral p ro p e rty ,“ and “ o th erw ise p ro te ct th e public interest in th e lands trav ersed by th e rights-ofw ay o r ad jacen t thereto.** T h e A ct o f O c to b e r 13, 1964, 16 U .S.C . §§ 532-538, w h ich g en erally 

co n c ern s th e co n stru c tio n and m ain ten an ce o f a system o f ro ad s w ith in th e national forests, au th o rizes 

th e S ecretary to g ran t perm an en t o r te m p o rary easem ents “ u n d er such reg u latio n s as he m ay p re ­

scrib e." 16 U .S.C . § 533.

u In 1964, in response to th e A tto rn e y G e n e ra l’s 1962 op in io n . C o n g ress passed legislation .g iving 

th e S ecretary th e a u th o rity to g ran t perm an en t o r te m p o rary easem ents o v e r lands m anaged by th e 

D ep artm en t o f A g ricu ltu re. Pub. L. N o. 88-657. § 2 , 78 S tat. 1089 (1964). T h e co m m ittee rep o rts o f 

b oth th e H ouse an d th e S enate in d icate that C o n g ress u n d ersto o d th e A tto rn e y G e n e ra l's opinion to 

hold that § 478 w as “ not to be c o n stru e d as a statu to ry g u aran tee o f access to p riv ate lands w ithin th e 

national forests." S. R ep. N o. 1174, 88th C o n g ., 2d Sess. 4 (1964); H .R . Rep. N o. 1920. 88th C o n g ., 2d 

Sess. 4 (1964). In th e S enate rep o rt, th e co m m ittee stated:

It sh o u ld be expressly n o ted that this legislation is inten d ed n eith er to affirm n o r to 

ab ro g ate th e A tto rn e y G e n e ra l’s in terp reta tio n o f th e act o f Ju n e 4. 1897 (30 S tat. 36,

16 U .S.C . 478), w ith respect to th e act*s assu ran ce o r lack o f assurance, co n c ern in g 

access to p riv ate lands acro ss national forest lands. H o w e v er, th e p red ictab le efTect o f 

this legislation w ill be to m inim ize th e likelihood o f litigation b etw een th e U nited 

S tates and p riv ate lan d o w n ers designed to test ap p licatio n s o f th e A tto rn e y G e n e ra l’s 

in terp retatio n o f the act o f Ju n e 4, 1897. T h is legislation w ill p ro v id e to m ost o w n ers 

o f p riv ate land a satisfacto ry altern ativ e to statu to ry assu ran ce o f access to and from 

th eir lands. T h e co m m ittee th e refo re reco m m en d s en actm en t o f th e act as am ended. 

A m en d m en ts w h ich w ould h av e crea ted a statu to ry rig h t o f access w ere rejected b o th in co m m ittee 

(S. R ep. N o. 1174, at 8) and on th e S en ate floor. 110 C o ng. 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 onerous 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 enactment 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 Foundation, 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 overriding rule that the statute, and not the agency’s interpretation, is conclusive. 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 administrative 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 Soriano v. U nited States. 494 F .2d 681, 683 (9th C ir. 1974), th e c o u rt d eclin ed to g iv e special

d efere n ce to a reg u latio n p ro m u lg ated m o re th an 100 years after en actm en t o f th e statute.

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 creation 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 Leo Sheep, th e C o u rt co n sid ered th e question w h e th e r th e U nited S tates had reserv ed an 

easem ent to pass o v e r lands w h ich had passed from federal o w n ersh ip . Y o u r inquiry, co n v e rsely , is 

w h eth e r th e U nited S tates g ran ted an easem ent to a federal land g ran tee to pass o v e r retain ed lands to 

reach th e co n v ey ed p ro p erty . T h e L eo Sheep case is discussed infra at pages 19-20, n o te 28.

17 See generally 3 P ow ell on R eal P ro p erty § 4 1 0 (1979); 2 T h o m p so n on R eal P ro p erty § 363, at 

424-27 (1961 & S upp. 1978); 3 T iffan y , L aw o f Real P ro p e rty § 7 9 3 (3d ed. 1939 S upp. 1979); 

C om m ent, Easem ents B y W ay o f N ecessity Across Federal Lands, 35 W ash. L . R ev. 105, 107 (1960).

18 C o u rts h av e em phasized vario u s facto rs in ap p ly in g this d o ctrin e. T h e R estatem en t o f P ro p erty 

§ 4 7 6 , lists som e o f these factors:

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 federal law must control. The Constitution vests in Congress alone authority 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 claim an t is th e co n v e y o r o r th e co n v ey ee; .

(b) th e term s o f th e co n v ey an ce:

(c) th e co n sid eratio n given for it:

(d) w h eth e r th e claim is m ade against a sim u ltan eo u s co n v ey ee;

(e) th e extent o f th e necessity;

( 0 w h e th e r recip ro cal benefits result to th e c o n v e y o r o r co n v ey ee;

(g) th e m an n er o f use o f th e land b efo re co n v ey an ce:

(h) th e extent to w h ich p rio r use w as know n.

19See. e.g.. U nited States v. D unn. 478 F .2d 443 (9 th C ir. 1973) (h olding, w ith o n e ju d g e dissenting, 

th at th e d o c trin e is applicable); S u n Studs. Inc.. 83 I.D . 518 (1976) (h o ld in g th at th e d o c trin e is not 

applicable). S om e co m m en tato rs state th a t w ay s o f n ecessity d o n o t arise against th e so vereign. 2 G . 

T h o m p so n , C o m m en taries on th e L aw o f Real P ro p erty § 362, at 417 (1961); Jo n es on E asem ents 

§ 3 0 1 , at 247 (1898). O th e rs c o n c lu d e th a t th e d o ctrin e sh o u ld be applicable. 3 P ow ell on Real 

P ro p e rty § 4 1 0 at 34-73 to 34-74 (1979); 3 T iffany, L aw o f R eal P ro p e rty § 793 (3d ed. 1939).

20 W hen, h o w ev er, th e land has passed from federal o w n ersh ip , it beco m es su b ject to th e law s o f 

th e state in w h ich it is lo cated . See Oregon ex rel. S ta te L a n d Bd. v. Corvallis S a n d <& G ravel Co.. 429 

U.S. 363, 372 (1977). It follow s, th e refo re, th at w h ere title to b o th a d o m in an t an d servient tenem ent 

has passed from federal o w n ersh ip , th e q uestion w h e th e r th e unity-of-title req u irem en t is satisfied by 

p rio r g o v ern m en t o w n ersh ip is a q uestion o f state law . S tate c o u rts h av e reach ed differin g o p inions on 

this q u estion. C o u rts in C alifo rn ia, F lo rid a, Indiana, O k lah o m a, T ennessee, and T exas h av e co n clu d ed 

that un ity o f title can n o t be based on p rio r g o v ern m en t o w n ersh ip . B u lly H ill Copper M ining &

S m eltin g Co. v. Bruson. 4 C al. A pp. 180, 87 P. 237, 238 (1906); G uess v. Azar. 57 So. 2d 443, 444 (F la. 

1952); C ontinental Enterprises Inc. v. Cain, 296 N .E .2 d 170, 171 (In d . 1973); D udley v. Meggs, 153 P. 

1121, 1122 (O kla. 1915); Pearne v. Coal C reek M in. & M fg. Co.. 90 T en n . 619, 627-28, 18 S.W . 402-04 

(1891); Sta te v. Black Bros.. 116 T ex. 615, 629-30, 297 S.W . 213, 218-19 (1927). C o u rts in A rkansas, 

M issouri an d M o n tan a h av e reac h ed th e o p p o site co n clu sio n . Arkansas Sta te H ighw ay C o m m 'n v. 

M arshall. 485 S .W .2d 740, 743 (A rk . 1972); S n yd er v. Warford, 11 M o. 513, 514 (1848); Violet v. 

M artin. 62 M ont. 335, 205 P. 221, 223 (1922).

21 T h e rules ad o p tin g state law to d eterm in e w h at rip arian rig h ts pass in a federal g ran t a re not 

ap p licab le to th e q u estio n o f w ay s acro ss federal land. Utah Power & L ig h t Co. v. U nited States. 243 

U.S. 389, 411 (1917). See Oregon ex rel. S ta te L a n d Bd. v. Corvallis S a n d <£ Grave! Co.. 429 U .S. 363, 

372 (1977); U nited States v. Oregon. 295 U .S. 1, 27 (1935); H ardin v. Jordan. 140 U .S. 371 (1891).

40
To determine what rights have passed under federal law, it is necessary 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 Congress, 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 easement 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 Government is the grantor, the actual intent of Congress would, at the least,

23 W e n o te th at y o u r d ep a rtm en t, w ith o u l reach in g th e easem ent-by-necessity issue, has co n clu d ed 

that an exam ination o f th e g ran tin g statu te is essential to d eterm in in g access rights. See M em orandum : 

A ccess to S tate and P riv ate Inh o ld in g s in N atio n al F o rests at 18, U .S. D ept, o f A g ric u ltu re (O ct. 31, 

1979).

23 See also C am field v. U nited States, 167 U.S. 518, 524-26 (1897); U nited States v. Clarke, 529 F .2d 

984, 986 (9th C ir. 1976).

2*See C urtin v. Benson. 222 U .S. 78, 86 (1911). In U nited States v. 9.947.71 Acres. 220 F. S upp. 328, 

331 (D . N ev. 1963), th e co u rt reco g n ized an im plied access right for m ining pu rp o ses w h ere a m ining 

claim o w n e r had to cro ss public do m ain to reach his claim . C f Arizona v. California, 373 U .S. 546, 

599-600 (1963); W inters v. U nited States, 207 U.S. 564, 575-77 (1908). T h ese cases reco g n ize an im plied 

reserv atio n o f w ate r rig h ts for Indian reservations.

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 presumed to pass by implication.25

The doctrine of easements by necessity was developed to settle 

disputes between private parties, not disputes involving the federal 

government.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 disposing 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 since th e A tto rn e y G en eral o p in ed in 1962 that th e d o c trin e o f easem ents by 

necessity w as not en fo rce ab le acro ss federal land, C o n g ress has not m odified th e rule. A lth o u g h this 

g en e ra lly is not stro n g ev id en ce w h en th e re is no in d icatio n that C o n g ress w as aw are o f the ruling 

(Z u b er v. Allen, 396 U .S. 168, 194 (1969)), it is m ore p ersu asiv e w h en , as here, con g ressio n al action 

d ire ctly resulted from th e opinion. See n.14, supra. See generally Bean v. Ledm ar. 368 U.S. 403, 412-13

(1962); U nited States v. M idw est O il Co.. 236 U .S. 459, 481 (1915).

26T h e d o c trin e has been tra ced to early E nglish origins. S im o n to n , Ways o f Necessity, 25 C olum . L. 

R ev. 571, 572-78 (1925). It usually has been p red icated on public p o licy fav o rin g land utilization and a 

p resu m p tio n o f intent. 3 P ow ell on R eal P ro p erty § 4 1 0 at 34-59 to 3 4-60 (1979).

21 See. e.g.. A ct o f M arch 3, 1875, ch. 252, § 1, 18 S tat. 482 (rep ealed 1976) (rig h t o f w ay for 

railroads); A ct o f M arch 3, 1891, ch . 561, § 18 (rep ealed 1976) (rig h t o f w ay for irrig atio n d itch es and 

canals); A c t o f Jan. 21, 1895, ch. 37, § I (rep ealed 1976) (rig h t o f w ay for tram ro d s, canals, and 

reservoirs); A ct o f Ju ly 26, 1866, ch. 262, § 8, 14 S tat. 253 (rep ealed 1976) (rig h t o f w ay for highw ays). 

T h e se statu tes w ere repealed by th e F ed eral L and P olicy and M an ag em en t A ct o f 1976 (F L P M A ), 

Pub. L. N o. 94-579, § § 5 0 1 -5 1 1 , 90 S tat. 2776-82 (co d ified at 43 U .S.C . §§17 6 1 -1 7 7 1 ). F L P M A 

p ro v id es, w ith certain exceptions, th a t rig h ts o f w ay acro ss g o v ern m en t land can o n ly be ob tain ed as 

p ro v id e d in th at A ct. 43 U .S .C J770. G en eral an d co m p reh en siv e legislation, prescrib in g a co u rse o f 

c o n d u c t to be p u rsu ed an d th e p arties and th ings affected, and specifically d escrib in g lim itations and 

ex cep tio n s, is in d icativ e o f a legislative intent that th e statu te sh o u ld to tally su p ersed e and rep lace the 

co m m o n law d ealin g w ith th e subject m atter. Isbrandtsen Co. v. Johnson. 343 U .S. 779, 787-88 (1952); 

S n eel v. Ruppert, 541 P .2d 1042 (W yo. 1978); J. S u th erlan d , S tatu tes and S tatu to ry C o n stru ctio n 

§ 50.05 (1973 & S upp. 1978).

42
Court refused to hold that the federal government had forfeited by 

laches or estoppel its interest in littoral property, stating: “The Government, 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 significance” 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 Leo Sheep Co. v. U nited States. 440 U .S. 668 (1979), th e C o u rt, in h o ld in g th at th e federal 

g o v ern m en t do es not h av e a reserv ed easem ent by necessity acro ss th e land o f its g ran tee o r its 

g ran tee's successor, w rote:

F irst o f all, w h a te v e r right o f passage a p riv a te la n d o w n e r m ig h t have, it is n o t at all 

clear that it w o u ld include th e right to c o n stru c t a road for public access to a 

recreatio n al area. M ore im p o rtan tly , the easem ent is not actu ally a m a tte r o f necessity 

in this case because th e G o v ern m en t has th e p o w er o f em inent dom ain. Ju risd ictio n s 

h ave g en e ra lly seen em inent dom ain and easem ents by necessity as altern ativ e w ay s to 

effect th e sam e results. . . . [SJtate co u rts h av e held th at the “easem ent by n ecessity ” 

d o ctrin e is not available to th e sovereign.

Id. at 679-81 (fo o tn o tes o m itted). O f co u rse, th e opin io n in Leo Sheep is not alo n e disp o sitiv e o f the 

question you h av e asked. It in v o lv ed a claim by th e g o v ern m en t g ran to r, not th e p riv ate g ran tee, o f an 

easem ent by necessity. T h e C o u rt th e re did rely substantially on the p o w e r o f em inent do m ain , and 

w as careful not to d ecid e th e b ro ad er q u estio n o f th e availability o f th e easem ent-by-necessity d o ctrin e 

generally. In an earlier case refusing to find a reserved w ay o f necessity for a public easem ent across 

p riv ate land, a d istrict co u rt stated m o re b ro ad ly : ‘i t is, in m y ju d g m en t, v ery d o u b tfu l w h e th e r the 

d o ctrin e o f w ays o f necessity has an y ap p licatio n to g ran ts fro m th e generaI G o v ern m en t u n d e r the 

p ublic land law s." U nited States v. Rindge, 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, Bydlon v. U nited States. 175 F. Supp. 891 (C t. Cl. 1959); M ackie v. U nited

States. 195 F. Supp. 306 (D . M inn. 1961).

29 O f co u rse, even w ith o u t su ch an en titlem en t, a la n d o w n e r m ay ap p ly for an easem ent p erm it 

u n d er p ro ced u re s established pursu an t to o th e r statutes. S ee F L P M A , 43 U .S.C 1761-1771; A ct o f 

O cto b e r 13, 1964, 16 U .S.C . 532 et seq. It can n o t be assum ed th at C o n g ress, o r federal reg u lato ry 

au th o rities, w ill ex ecu te th eir p o w er in such a w ay as to b rin g ab o u t injustice. See U nited States v. 

California, 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 demands 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 ordinarily 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 necessity 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 concluded: “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 rt, in effect, crea ted a h y b rid d o ctrin e, ap p ly in g prin cip les o f b oth w ay s o f necessity and 

w ay s crea ted by th e actu al intent o f th e g ran to r:

A p p ellan t's position is sim ply th a t since th e p aten t for th e M ission w as in u n restricted 

fee sim ple it ca rried w ith it by im plication a w ay o f n ecessity o v e r lands o f th e U nited 

States for all p u rp o ses to w h ich th e co n v e y ed land m ight law fu lly be put.

S uch is not th e law . T h e sco p e an d ex ten t o f th e rig h t o f access d ep en d s not u pon th e 

state o f title o f th e d o m in an t estate, n o r th e ex isten ce o r lack o f lim itations in th e g ran t 

o f th at estate, b u t u pon w h at m ust, u n d er th e circu m stan c es, be attrib u ted to th e 

g ra n to r eith er by im plication o f in ten t o r by o p eratio n o f law fo u n d ed in a public 

p o licy fav o rin g land utilization.

Superior O il Co. v. U nited Stales, 353 F .2d 34, 36-37 (9 th C ir. 1965).

31 S lip O p . at 8. In U nited States v. D unn, 478 F .2d 443 (9 th C ir. 1973), th e U nited S tates so u g h t an 

in ju n ctio n to p rev en t D u n n , w h o h eld title as a g ran tee o f a railro ad , from co n stru c tin g an access road 

fo r co m m ercial an d residential d ev e lo p m en t o f his land. T h e d istrict c o u rt g ran ted partial sum m ary 

ju d g m e n t, h o ld in g d efen d a n ts tresp assers an d th e g o v ern m en t en titled to im m ed iate possession. T h e 

N in th C irc u it rev ersed , h o ld in g th at su m m ary ju d g m e n t w as p reclu d ed becau se d efen d an ts raised th e 

factual issue w h e th e r th e y h ad an easem en t by necessity. Id. at 446. T h e D u n n c o u rt's o nly discussion 

o f th e ap p licatio n o f th e d o ctrin e, h o w e v e r, ap p e ared in a fo o tn o te response to th e dissenting ju d g e . In 

th e d issen t. J u d g e W rig h t stated sim ply th at he "w o u ld h o ld th at u n d er th e facts o f this case th e

Continued

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 developed 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 tenement, 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 Congress—to manage forest reserves empowers you to regulate their exercise. 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 surrounding 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 ctrin e o f easem ent by necessity is not bin d in g on th e U nited S tates. . . Id. at 446. T h e m ajo rity 

responded;

S ince th e G o v ern m en t d id not, in o u r ju d g m en t, raise th e point upo n w h ich Ju d g e 

W rig h t bases his dissent, w e h av e not discussed it in th e opinion, but n ev erth eless did 

g iv e it co n sid eratio n an d co n clu d ed that it lacked m erit.

Id. at 444 n.2. I d o not find this case p ersuasive a u th o rity for ap p licatio n o f th e d o ctrin 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 government 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) (restriction of access by erection of fence enclosing extended portion of highway 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 concern 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, however, 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 wilder32 T h e im pact o f th e W ild ern ess A ct is discussed in P art IV .

33 See Parker v. U ntied States. 448 F .2 d 793 (10th C ir. 1971), cert, denied sub. nom ., K aibab Industries

v. Parker, 405 U .S. 989 (1972) (h eld S e c re ta ry ’s d iscretio n to e n te r in to th e tim b er h arv estin g co n tra c t 

for p u b lic land is lim ited by 16 U .S.C . § 1132(b)).

34 In ad d itio n to “ existing p riv a te rights,*' th e W ild ern ess A ct perm its ingress to an d eg ress from 

m ining lo catio n s until D ecem b er 31, 1983. 16 U .S.C . § 1133(d)(3). S u ch ingress and eg ress is subject to 

reaso n ab le reg u latio n by th e S ecre ta ry o f A g ric u ltu re , co n sisten t w ith use o f th e land for m ineral 

ex p lo ratio n , lo catio n , d ev e lo p m en t, p ro d u ctio n , an d related purposes.

46
ness study acts thus do not modify any implied rights that may accompany 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 easements 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-ofway. 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 landowner voluntarily chooses a land exchange. Pursuant to this interpretation, 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 Secretary of Agriculture) the authority to deny access to a landowner, and

3516 U .S.C . § 533. See p. 10 & note 13 supra. T his statu te w as not rep ealed by F L P M A . W ith 

respect to the S ecretary o f A g ric u ltu re ’s a u th o rity un d er §§ 532-538, F L P M A p ro v id ed :

[N ]o th in g in this su b ch ap ter shall be co n stru e d as affecting o r m odifying th e p rovisions 

o f sections 532 to 538 o f title 16 and in th e event o f co n flict w ith , o r inconsistency 

betw een , this su b ch ap ter an d sections 532 to 538 o f title 16, th e la tte r shall prevail: 

Provided fu rth er. T h a t n o th in g in this A ct should be c o n stru e d as m aking it m an d ato ry , 

that, w ith respect to forest roads, th e S ecretary o f A g ricu ltu re lim it righ ts-o f-w ay 

g ran ts o r th eir term s o f years o r req u ire d isclo su re p u rsu an t to sectio n 1761(b) o f this 

title o r im pose any o th e r co n d itio n co n tem p lated by this A ct that is c o n tra ry to present 

practices o f th at S ecretary u n d er sections 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 regulation p ro v id es in part:

States o r persons, an d th e ir successors in interest, w h o o w n land co m p letely s u rro u n d ed by N ational F o rest W ilderness shall be g iven su ch rig h ts as m ay be necessary 

to assure ad eq u ate access to th e land. “ A d eq u ate access” is defined as th e co m b in atio n 

o f routes an d m odes o f trav el w h ich w ill, as d eterm in ed by th e F o rest S erv ice, cause 

th e least lasting im pact on th e p rim itiv e c h a ra c te r o f th e land an d at th e sam e tim e w ill 

serv e th e reasonable pu rp o ses for w h ich th e S tate an d p riv a te land is h eld o r used.

T h is reg u latio n is co n sisten t w ith y o u r d e p a rtm en t’s in terp reta tio n o f 16 U .S.C . § 4 7 8 . S ee 36 C .F .R . 

§ 212.8(b).

47
offer land exchange as indemnity.38 The Interior Department’s interpretation, contrary to yours, under appropriate circumstances would allow 

denial of “adequate access” to private holdings as well as to stateowned 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 influence, without permanent improvements or human habitation.” 16 

U.S.C. § 1131(c). Section 4(c) of the Act prohibits, with limited exceptions, use of motor vehicles or other mechanical transportation. 16 

U.S.C. § 1133(c). It also prohibits permanent roads within any wilderness area, except as specifically provided in the Act, and subject to 

“existing private rights.” Id. The Act directs you to administer wilderness 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 wellrecognized rights in property.39 Thus, in spite of the Act’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 Su p p lem en tal M em o ran d u m In S u p p o rt o f P laintifT s M otion for P erm an en t In ju n ctio n , at 14-19, 

U nited States v. C otter Corp., N o. C 79-0307 (D . U tah O ct. 1, 1979). T h e c u rre n t reg u latio n o f the 

In te rio r D e p a rtm e n t’s F ish an d W ildlife S erv ice, 50 C .F .R . 35.13, alth o u g h so m ew h at am biguous, 

restricts access to m eans and ro u tes w h ich w ill “ p reserv e th e w ild ern ess c h a ra c te r o f th e area .” T h e 

reg u latio n provides:

R ig h ts o f S tates o r p erso n s and th e ir su ccesso rs in interest, w h o se land is su rro u n d ed 

by a w ild ern ess unit, w ill be reco g n ized to assure ad e q u ate access to th at land. 

A d eq u ate access is defined as th e co m b in atio n o f m odes an d ro u tes o f trav el w h ich 

w ill best p reserv e th e w ild ern ess c h a ra c te r o f th e landscape. M odes o f trav el d esig ­

n ated shall be reaso n ab le an d co n sisten t w ith ac cep te d , co n v e n tio n al, co n tem p o rary 

m odes o f tra v el in said vicinity. U se w ill be co n sisten t w ith reasonable p urposes for 

w h ich such land is held. T h e D ire c to r w ill issue su ch p erm its as are necessary for 

access, d esig n atin g th e m eans and ro u te s o f trav el for ingress and d eg ress (sic) so as to 

p reserv e th e w ild ern ess c h a ra c te r o f th e area.

395ee, e.g.. U nited States v. Welch, 217 U .S. 333, 339 (1910); M yers v. U nited States, 378 F .2d 696, 

703 (C t. C l. 1967). It lo g ically co u ld be arg u e d th at th e p h rase “existing p riv ate rig h ts'' includes and 

p reserv es o n ly th o se rig h ts w h ich h ad been exercised at th e tim e th e W ilderness A c t w as passed. L ittle 

su p p o rt exists, h o w ev er, for this arg u m en t th at C o n g ress in ten d ed to extinguish unexercised access 

rights, leav in g th e la n d o w n e r w ith o n ly th e rig h t to access o r ex ch an g e u n d er § 5(a). W h en p ro v id in g 

fo r p reserv atio n o n ly o f estab lish ed uses, C o n g ress clearly so indicated. See 16 U .S.C . § 1133(d)(1) 

(p erm ittin g estab lish ed uses o f aircraft an d m o to rb o ats). In S. R ep. N o. 109, 88th C o n g ., 1st Sess. 2

(1963), th e co m m ittee stated th a t u n d er th e W ild ern ess P reserv atio n S ystem , “existing p riv a te rights 

a n d established uses" are p erm itted to co n tin u e. (E m p h asis ad d ed .) A w ay o f access to w h ich a person 

is en titled by express o r im plied g ran t p red atin g th e W ilderness A c t is a rig h t w h ich existed p rio r to 

th e effectiv e d a te o f th e A ct, w h e th e r ex ercised o r unexercised.

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 completely 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 Agriculture: 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 interpreted 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 legislative history makes clear that the term includes access not consistent 

with wilderness uses.41 For example, in both the Senate and House

40See note 37 supra.

41 O th e r sections apply to uses co n sisten t w ith w ilderness p reserv atio n . In § 5(b), 16 U .S.C . 

§ 1134(b), C o n g ress p ro v id ed that w h ere valid m ining claim s o r o th e r valid o ccu p an cie s a re su rro u n d ed by a national forest w ilderness area, th e S ecretary o f A g ric u ltu re shall, by reasonable 

reg u latio n s co n sisten t w ith th e p reserv atio n o f th e area as w ilderness, perm it ingress to an d egress 

from such su rro u n d ed areas by m eans w h ich h av e been o r are b eing cu sto m arily e n jo y ed w ith resp ect 

to sim ilarly situ ated areas. Cf. 16 U .S.C . § 1133(d) (p ro v id es fo r reg u latio n o f ingress an d egress 

co n sisten t w ith use o f land for m ineral ex p lo ratio n an d d ev elo p m en t). S ectio n 5(b) did n o t ap p e ar in 

e ith er S. 174 o r S. 4. It d id ap p e ar in sev eral early H ouse versions o f th e bill, an d th ese v ersions 

expressly in clu d ed “ p riv a tely o w n ed lan d s" in ad d itio n to valid m ining claim s an d o th e r valid

Continued

49
debates, repeated references were made to road construction for motorized 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 reasonable purposes for which the state and private land is held or used.” 42 

What constitutes adequate access will depend on the facts and circumstances of 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 amendment 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 identified 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 ccu p an cies. T h is referen ce to p riv a lely o w n ed lands w as d eleted in later v ersio n s o f th e bill, su ch as 

H .R . 9070. T h e rep o ris d o not explain this d eletio n . It m ay h av e o c c u rre d becau se o f th e decision 

d u rin g th e sam e session to in clu d e p riv a tely o w n ed land in § 5(a).

T h e final p arag ra p h o f § 5 , 16 U .S.C . § 1134(c), au th o rizes you to acq u ire state o r p riv ately ow n ed 

land o n ly if eith er th e o w n e r c o n c u rs o r C o n g ress specifically au th o rizes th e acquisition.

42 See 36 C .F .R . § 293.12, n o te 27 supra.

43 Y o u r d ep a rtm en t relies on th e legislative h isto ry o f subsequent legislation to su p p o rt its c o n te n ­

tion th at § 5(a) g ran ts a rig h t to ad e q u ate access to inholders. In a rep o rt filed in co n ju n ctio n w ith the 

Indian Peaks W ilderness A rea, et a l, 16 U .S.C . § 1132 note, th e H o u se C o m m ittee n oted th at § 5 o f 

th e W ild ern ess A ct req u ires th e S ecretary to g iv e p riv a te lan d o w n e rs ad e q u ate access. H .R . R ep. N o. 

1460, 9 5th C o n g ., 2d Sess. 9 -1 0 (1978). T h e rep o rt d oes not discuss th e ex ch an g e o p tion.

T h is leg islativ e o b serv atio n is not a part o f th e legislative h isto ry o f th e W ild ern ess A ct. It is the 

in ten t o f th e C o n g ress th a t en a cted a law th a t co n tro ls in terp reta tio n o f th at law . U nited Airlines, Inc.

v. M cM ann. 434 U .S. 192, 200 n.7 (1977); Team sters v. U nited States, 431 U .S. 324, 354 n.39 (1977). 

W h a tev er ev id en ce is p ro v id e d by th e rep o rt on th e subsequent legislation is o v erco m e by co n flictin g 

ev id en ce. See Southeastern C o m m u n ity College v. Davis, 442 U .S. 397, 411-12 (1979); Oscar M ayer &

Co. v. Evans, 441 U.S. 750, 758 (1979).

44 T h e resolution passed by th e W estern S tate L and C o m m issioners su g g ested th at th e bill be 

am en d ed to co n tain th e fo llo w in g provision:

W h e n ev er an area in clu d in g S tate-o w n ed land is in c o rp o rated in th e w ild ern ess system , 

p ro v isio n shall be m ad e for access to such land ad eq u ate for th e reaso n ab le exercise o f 

its rig h ts th erein by th e S tate an d th o se claim ing u n d er it . . . . P ro v id ed , h o w ev er, 

th a t, if th e reco m m en d a tio n b y w h ich an area in clu d in g S tate-o w n ed land is in c o rp o ­

rated in th e w ild ern ess system shall fail to p ro v id e for access to th e S tate-o w n ed land 

th erein , then th e o w n in g S tate m ay, at its electio n , use th e in clu d ed S tate land as base 

in m aking ind em n ity selection o f lands, in clu d in g th e m ineral rights th erein as p ro v id ed 

in ap p licab le U .S. statu tes.

107 C o ng. R ec. 18,103 (1961). T h e reso lu tio n illu strates th a t th e C om m issioners also b elieved access 

co u ld be d en ied . T h e in d em n ity statu tes to w h ich th e resolution refers, 43 U .S.C . 851, 852, allo w states 

to m ake in d em n ity selectio n s w h e n e v e r sch o o l sections are lost because o f o th e r reserv atio n s o r g ran 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 surrounded by lands incorporated into the wilderness system 

such State shall be given (1) such rights as may be necessary 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 accomplished 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 indemnification 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 wilderness 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 ex ch an g e land is p ro v id ed by 16 U .S.C . § § 4 8 5 , 486 (o rig in ally en a cted as A ct o f 

M ar. 20, 1922, ch . 105, 42 S tat. 465) and 16 U .S.C . § 516 (o rig in ally en acted as A ct o f M ar. 3, 1925, 

ch . 473, 43 S tat. 1215).

46 H is b elief th at access to state-o w n ed lands m ay be den ied en tirely m ay result in p art from th e 

lan g u ag e o f § 4 (c ), 16 U .S.C . § 1133(c), w h ich specifically p ro te cted o n ly existing private rights. H e 

m ade no statem ents rely in g on this language, h o w ev er.

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 amendment 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.

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. . . 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 Section 4(d)(1) o f th e A ct, 16 U .S.C . § 1133(d)(1), p ro v id es that th e “ use o f aircraft o r m o to rboats, w h ere these uses have alread y b eco m e established, m ay be p erm itted to co n tin u e su b ject to such 

restrictions as th e S ecretary o f A g ricu ltu re deem s d esirab le.” T h e co m m ittee rep o rts reveal an intent 

th at o th e r w ell-established uses also be p erm itted to co n tin u e. See. e.g.. S. R ep. N o. 109, 88th C o n g ., 

1st Sess. 2, 10 (1963). See also 109 C o n g . R ec. 5926 (1963) (S en ato r C h u rch , a sp o n so r o f th e bill, 

expressed th e view that o w n ers o f ran ch es be allo w ed to co n tin u e “ th e cu sto m ary usage o f th eir 

p ro p erty for ingress and egress a c co rd in g to th e cu sto m ary w ay s” ).

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rights of access are preserved. Even if the landowner has no prior 

existing right to access not consistent with wilderness uses, the Wilderness Act requires that “adequate access” be given or that an offer be 

made to the landowner to exchange the land for federal land of approximately 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 exchange, 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 management responsibilities.

Sincerely,

B e n j a m i n R. C i v i l e t t i

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