FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN JAMES MCFARLAND, 

Plaintiff-Appellant,

v.

DIRK KEMPTHORNE, in his capacity

as Secretary of the Department of No. 06-36106 the Interior; SUZANNE LEWIS, in her

capacity as Superintendent of D.C. No.

Glacier National Park; UNITED  CV-00-00020-MSTATES OF AMERICA; NATIONAL DWM

PARK SERVICE, OPINION

Defendants-Appellees,

NATIONAL PARKS CONSERVATION

ASSOCIATION,

Defendant-intervenorAppellee. 

Appeal from the United States District Court

for the District of Montana

Donald W. Molloy, Chief District Judge, Presiding

Argued and Submitted

May 7, 2008—Seattle, Washington

Filed October 2, 2008

Before: Arthur L. Alarcón, Susan P. Graber, and

Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Rawlinson

14039
COUNSEL

Ronald W. Opsahl (briefed and argued), William P. Pendley

(briefed), Mountain States Legal Foundation, Lakewood, Colorado, for the plaintiff-appellant. 

William B. Lazarus (briefed), Elizabeth A. Peterson (briefed

and argued), United States Department of Justice, Washington, D.C., for the defendants-appellees. 

William J. Friedman (briefed), Charles H.P. Vance (briefed

and argued), Covington & Burling LLP, Washington, D.C.;

Jack R. Tuholske (briefed), Missoula, Montana, for the

defendant-intervenor-appellee. 

OPINION

RAWLINSON, Circuit Judge: 

Appellant John J. McFarland (McFarland) contends that the

district court erred in granting the defendants’ motion for

summary judgment. He asserts that he is entitled to an easement over Glacier Route 7 to access his property that is surrounded by Glacier National Park. Because McFarland cannot

claim a common-law easement over federal land and because

the National Park Service’s (Park Service) denial of his permit request was neither arbitrary nor capricious, and was in

accordance with governing law, we affirm the decision of the

district court. 

14042 MCFARLAND v. KEMPTHORNE
I. FACTS AND PROCEDURAL HISTORY

McFarland owns a 2.75 acre plot of land (the Property)

located within the boundaries of Glacier National Park, in an

area commonly known as “Big Prairie.” The Property was

conveyed to McFarland’s predecessor in interest, Charles

Schoenberger, in 1916 by a federal patent under the Homestead Act of 1862. The patent read: “TO HAVE AND TO

HOLD the said tract of Land, with the appurtenances thereof,

unto the said claimant and to the heirs and assigns of the said

claimant, forever.” 

Glacier Route 7 passes through what is now Glacier

National Park. It is, and always has been, the only road over

which McFarland and his predecessors have had motorized

access to the Property. Although the Park Service has prohibited snowmobiling in Glacier National Park since 1975 and

has generally closed Glacier Route 7 to automobiles during

the winter season, the Park Service continued to allow

inholders some degree of motorized access over Glacier

Route 7 in winter months until 1999.1 In December, 1999, the

Park Service notified McFarland that it would no longer allow

inholders motorized access to Glacier Route 7 once it was

closed to the general public. The Park Service stated that it

was implementing this policy to protect wildlife and public

recreational opportunities. 

A. Administrative Proceedings

In response to the Park Service’s announcement that it

would close Glacier Route 7 to inholders, McFarland filed an

application for a special use permit. He requested year-round

permission for his family and guests to drive a vehicle on Glacier Route 7 between the Property and the Polebridge Ranger

1As the district court noted in its Order granting the Defendant’s Motion

for Summary Judgment, the parties dispute the extent of motorized access

permitted to inholders during the winter season prior to 1999. 

MCFARLAND v. KEMPTHORNE 14043
Station. Additionally, McFarland requested permission to use

a snowmobile when “road conditions make it unsafe or

unpractical to drive . . .” The Park Service denied the permit

request. McFarland’s administrative appeal was also denied.

The Park Service explained its denial of McFarland’s permit application by reference to previous correspondence, in

which it explained that its policy decision to close Glacier

Route 7 to motorized traffic during the winter was “made to

protect wildlife concerns and public recreation values.” The

Park Service also referred to its 1975 determination, following “an Environmental Assessment that included extensive

public review,” that snowmobiles are “an incompatible public

use.” The 1975 determination was reaffirmed by the park’s

1999 General Management Plan. 

In the context of denying McFarland’s permit application

the Park Service reasserted the authority of the Superintendent

to enact public closures “based upon a determination that:

such action is necessary for the maintenance of public health

and safety, protection of environmental or scenic values, protection of natural or cultural resources, aid to scientific

research, implementation of management responsibilities,

equitable allocation and use of facilities, or the avoidance of

conflict among visitor use activities.” 

Mike Snyder, the Deputy Regional Director, affirmed that

denial of McFarland’s permit request was consistent with the

Park Service’s determination that use of snowmobiles would

create visitor use conflicts and disturb wildlife habitats. 

B. Federal Court Proceedings

McFarland filed suit in the United States District Court for

the District of Montana, seeking to quiet title to an easement

over Glacier Route 7. McFarland claimed an easement by

necessity, an easement implied from the Homestead Act, and

an express easement under the terms of the Schoenberger land

14044 MCFARLAND v. KEMPTHORNE
patent. McFarland also alleged that the denial of his application for a special use permit violated the Administrative Procedure Act, 5 U.S.C. § 706(2). The district court originally

dismissed McFarland’s claims, concluding that they were

barred by the Quiet Title Act’s twelve-year statute of limitations. We reversed and remanded the case to the district court.

See McFarland v. Norton, 425 F.3d 724, 729 (9th Cir. 2005).

On remand, the district court granted summary judgment in

favor of the defendants. McFarland filed a timely appeal. 

II. DISCUSSION

“This court reviews the district court’s grant of summary

judgment de novo.” Fitzgerald Living Trust (Fitzgerald II) v.

United States, 460 F.3d 1259, 1263 (9th Cir. 2006) (citations

omitted). “We must determine, viewing the evidence in the

light most favorable to the nonmoving party, whether there

are any genuine issues of material fact and whether the district

court correctly applied the relevant substantive law.” Id. (citation omitted). 

Under the Administrative Procedure Act, an agency decision will be set aside only if it is “arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law.”

5 U.S.C. § 706(2)(A). A federal court may not substitute its

judgment for that of the agency. See United States Postal

Serv. v. Gregory, 534 U.S. 1, 7 (2001). An agency decision

may be reversed only if the agency “relied on factors which

Congress has not intended it to consider, entirely failed to

consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before

the agency, or is so implausible that it could not be ascribed

to a difference in view or the product of agency expertise.”

Safari Aviation Inc. v. Garvey, 300 F.3d 1144, 1150 (9th Cir.

2002) (citation and internal quotation marks omitted). We

must, however, ensure that the agency has “articulated a rational connection between the facts found and the choice made.”

MCFARLAND v. KEMPTHORNE 14045
Sierra Club v. EPA, 346 F.3d 955, 961(citation and alteration

omitted), as amended by 352 F.3d 1186 (9th Cir. 2003). 

McFarland contends that he is entitled to an easement over

Glacier Route 7 to access his property. McFarland lays claim

to an easement by necessity, an easement implied from the

Homestead Act, and an easement expressed in the federal land

patent to his predecessor-in-interest. Additionally, McFarland

posits that the Park Service’s denial of his special use permit

was arbitrary, capricious, and otherwise not in accordance

with the law. 

We conclude that the district court properly granted the

defendants’ motion for summary judgment. McFarland has no

valid claim to an easement. To the extent he has a right to

access his property across federal land, that right is subject to

the reasonable regulation of the Park Service, implemented

through the permitting process. The Park Service’s denial of

McFarland’s special use permit was not arbitrary, capricious,

or in violation of the law.

A. Easement Claims

Federal law governs a claim of easement over lands owned

by the United States. See Superior Oil Co. v. United States,

353 F.2d 34, 37 n.4 (9th Cir. 1965). McFarland acknowledges

that federal law governs the claimed easement in this case, but

asserts that state law is “instructive” on points not addressed

by federal law. However, the “instructive” value of state law

is limited by federal interests. See United States v. Standard

Oil Co. of Cal., 332 U.S. 301, 309-10 (1947). Considering the

parameters articulated in Standard Oil, the strong federal

interest in the management of federal land weighs against the

importation of state law to resolve the present case. See Fitzgerald (Fitzgerald I) v. United States, 932 F. Supp. 1195,

1201 (D. Ariz. 1996) (noting that the Federal Land Policy and

Management Act (FLPMA) consolidated authority to grant

rights-of-way over federal land by “repeal[ing] over thirty

14046 MCFARLAND v. KEMPTHORNE
statutes granting rights-of-way across federal lands and vest[-

ing] in the Secretaries of Agriculture and the Interior [the]

authority to grant, issue, or renew rights of way over . . . public lands . . .”) (citation, alteration and internal quotation

marks omitted). 

1. Easement by Necessity

[1] The doctrine of easement by necessity applies, generally, against the United States. Mont. Wilderness Ass’n v.

United States Forest Serv., 496 F. Supp. 880, 885 (D. Mont.

1980); see also United States v. Dunn, 478 F.2d 443, 444 &

n.2 (9th Cir. 1973). “An easement by necessity is created

when: (1) the title to two parcels of land was held by a single

owner; (2) the unity of title was severed by a conveyance of

one of the parcels; and (3) at the time of severance, the easement was necessary for the owner of the severed parcel to use

his property.” Fitzgerald II, 460 F.3d at 1266 (citations omitted). 

[2] However, an easement by necessity does not exist if the

claimant has another mode of access to his property. See id.;

see also Mackie v. United States, 194 F. Supp. 306, 308 (D.

Minn. 1961). In fact, necessity may be defeated by alternative

routes or modes of access—no matter how inconvenient. See

Mackie, 194 F. Supp. at 308 (finding no necessity where

plaintiff could drive within one-third mile of a lake, carry his

supplies to the lake, load a boat and cross the lake to his property). McFarland has year-round access to his property over

Glacier Route 7. In the winter, this access is limited to nonmotorized means. We conclude that even subject to the seasonal limitations imposed by the Park Service, and in spite of

the associated inconvenience, McFarland enjoys sufficient

access to his property to defeat a finding of easement by

necessity.

2. Express Easement Claim

[3] McFarland contends that he is the holder of an express

easement arising from the language of the Schoenberger

MCFARLAND v. KEMPTHORNE 14047
Patent, which conveys the property “with the appurtenances

thereof.” We rejected a similar argument in Fitzgerald II,

where a property owner also claimed an express easement

over federal land based on the term “appurtenances” in the

land patent. 460 F.3d at 1267. “While the word ‘appurtenance’ will carry with it an existing easement, it will not

create the easement.” Id. (citations omitted); see also United

States v. Jenks, 129 F.3d 1348, 1355 (10th Cir. 1997). Thus,

unless an easement existed at the time of the grant, McFarland

holds no easement. See Jenks, 129 F.3d at 1355. As discussed

above, McFarland could not claim an easement at the time of

the grant, and his argument is undermined by his own representation that his “predecessor’s . . . access into his property

. . . was not protected by any county road easement or other

guarantee of continued access.” 

McFarland cites Hunter v. United States, 388 F.2d 148,

153-54 (9th Cir. 1967), and Humphreys v. McKissock, 140

U.S. 304, 314 (1891), to support his claim of an express easement. Both cases are distinguishable. Hunter involved a question of what rights were appurtenant to an appropriated water

right on federal land. 388 F.2d at 153-54. The court held that

a grazing right was not appurtenant to the water rights

because it was not necessary to the utilization of the water

rights. Id. at 154. Similarly, Humphreys addressed whether an

elevator was appurtenant to a railroad. 140 U.S. at 314-15.

The discussion of the meaning of “appurtenant” in these cases

in no way bolsters McFarland’s argument or blunts the holding of Fitzgerald II that an express easement must be

expressly conveyed. 

3. Implied Easement

[4] McFarland contends that he is the holder of an easement

implied from existing use, created at the time of the land

patent under the Homestead Act by virtue of seven years of

“use so long and manifest as to show that it was meant to be

permanent.” McFarland attempts to bolster this argument by

14048 MCFARLAND v. KEMPTHORNE
pointing to the Homestead Act’s language recognizing a right

“to enter” public lands to establish a homestead. However,

Fitzgerald II makes clear that this language does not create an

implied easement. See 460 F.3d at 1265 (“[T]he Homestead

Act did not grant settlers a vested property right of access

over public lands to their homesteads, but instead merely

sanctioned the longstanding customary use of public lands by

a settler.”). Moreover, application of the common-law doctrine of easement implied by prior use is not appropriate in

this case, where title was taken by way of a public grant. “In

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 . . .”

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

(citation omitted). Although the government has historically

provided for access across federal land to reach privately

owned inholdings, that access was granted in the form of a

license. See Jenks, 129 F.3d at 1353-55.

B. Regulation of Access

[5] The Property Clause gives Congress plenary power to

regulate the use of federal land. U.S. Const. art. IV, § 3, cl.

2; see United States v. Gardner, 107 F.3d 1314, 1318 (9th Cir.

1997) (recognizing that “the power over the public land thus

entrusted to Congress [under the Property Clause] is without

limitations”) (citations and alteration omitted). The Park Service’s authority to regulate use of federal land within the Park

is rooted in the Constitution and the National Park Service

Organic Act (Organic Act), 16 U.S.C. § 1. See Bicycle Trails

Council of Marin County v. Babbitt, 82 F.3d 1445, 1454 (9th

Cir. 1996), as amended. The Secretary’s authority “applies

with equal force to regulating an established right of way

within the park.” United States v. Vogler, 859 F.2d 638, 642

(9th Cir. 1988) (citation omitted). Even where a statutory

right of access exists, the Park Service has broad discretion to

regulate its use. See Hale v. Norton, 476 F.3d 694, 699-700

(9th Cir. 2007), cert. den. sub nom. Hale v. Kempthorne, 128

MCFARLAND v. KEMPTHORNE 14049
S. Ct. 804 (2007). The proper mechanism for such regulation

is the permitting process. See Adams v. United States, 255

F.3d 787, 795 (9th Cir. 2001). 

C. Special Use Permit

McFarland contends that the denial of his special use permit was arbitrary and capricious, an abuse of discretion, and

otherwise not in accordance with the law. McFarland

expressly asserts that the Park Service “failed to articulate a

satisfactory explanation for its decision.” 

[6] McFarland’s reliance on Motor Vehicle Mfrs. Ass’n

(Motor Vehicle) v. State Farm Mutual Auto. Ins. Co., 463

U.S. 29, 43 (1983), and Ry. Labor Executives’ Ass’n v. Interstate Commerce Comm’n, 784 F.2d 959, 964 (9th Cir. 1986),

is misplaced. An agency must “articulate a satisfactory explanation for its action . . .” Motor Vehicle, 463 U.S. at 43 (citation omitted). However, the critical factor in Motor Vehicle

was that the agency “submitted no reasons at all” for its decision. Id. at 50. 

Similarly, in Ry. Labor Executives’ Ass’n, we declined to

enforce an agency order due to its “total failure to articulate

any reason for refusing to impose labor protections[,]” making it “impossible for us as a reviewing court to understand

why the [agency] chose to deny rather than impose protections . . .” 784 F.2d at 975. 

[7] McFarland contends that the Park Service did not consider facts unique to his situation. However, a court “will . . .

uphold a decision of less than ideal clarity if the agency’s path

may be reasonably discerned.” Motor Vehicle, 463 U.S. at 43

(citations and internal quotation marks omitted). The National

Park Service’s written decision and other correspondence

clearly explained its reasons for closing the road and declining to make an exception for McFarland. The agency’s path

to its decision is easily followed by reading the correspon14050 MCFARLAND v. KEMPTHORNE
dence between the Park Service and McFarland. Ultimately,

the Park Service determined that its concerns for wildlife and

recreation in the national park justified closing Glacier Route

7 to motorized vehicles during the winter season. 

[8] “If an agency’s determination is supportable on any

rational basis, we must uphold it.” Voyageurs Nat’l Park

Ass’n v. Norton, 381 F.3d 759, 763 (8th Cir. 2004) (citation

omitted). “This is especially true when an agency is acting

within its own sphere of expertise.” Id. (citation omitted). As

in Voyageurs National Park Ass’n, the Park Service acted

within the sphere of its expertise when it decided not to grant

McFarland’s request. Cf. id. at 763-64 (deferring to the Park

Service in an analogous circumstance). Therefore, we conclude that the Park Service did not act arbitrarily, capriciously, or in violation of law when it denied McFarland’s

permit request. 

III. CONCLUSION

McFarland is not entitled to an easement by necessity. Nor

was an easement expressly granted in the original land patent

or implied through language of the Homestead Act or through

McFarland’s use of Glacier Route 7. Finally, the Park Service

provided adequate explanation of the denial of McFarland’s

permit request to allow us to determine that it did not act arbitrarily, capriciously, or in violation of law. Accordingly, we

affirm the district court’s entry of judgment in favor of the

government defendants. 

AFFIRMED.

MCFARLAND v. KEMPTHORNE 14051