ELR Citation: ELR 20715
No(s). 99-15823 (9th Cir. Jun 25, 2001)

The court affirms in part and reverses in part a district court decision requiring property owners to apply for permits for certain uses of a road traversing their property, which is completely surrounded by federally owned National Forest System lands. In 1964, the property owners purchased the property, which consists of two tracts of land separated and surrounded by National Forest land, pursuant to boundaries established by a 1939 survey and a predecessor-in-title's grant to the United States of a right-of-way across the property. Since that time the property owners made numerous changes to National Forest Service land without first obtaining permits. Some of the land damaged by the property owners' activities is accessible only by crossing their property. The property owners brought this case seeking to quiet title to their property based on an alleged discrepancy in the boundary of their property, and seeking to quiet title in an easement for access to their land.

The court first holds that the district court did not err in ordering the property owners to apply for a permit for access to their property that constitutes use of the National Forest System lands beyond the uses made by the general public. The property owners were never vested with a common-law easement for access to their property because all common-law claims are preempted by federal law where, as here, the United States owns the servient estate for the benefit of the public. Additionally, no taking has occurred by requiring the property owners to apply for a permit. The court next holds that the permit, in the form proposed by the government and sanctioned by the district court, reasonably regulates the property owners' access by providing that they must comply with U.S. Forest Service regulations if they wish to engage in surface-disturbing activities that are beyond those engaged in by the general public. The court next holds, however, that the district court erred in ordering that the United States be entitled to access to the property via a right-of-way conveyed by a predecessor-in-interest. The district court lacked jurisdiction to reach the merits of the government's claim. Nevertheless, the court holds that the district court correctly ordered that the United States is entitled to a right-of-way across the property pursuant to the Alaska National Interests Land Conservation Act. Last, the court holds that the district court erred in ordering a survey stricken from county records.

Counsel for Plaintiffs
Steven Wolfe Thompson
Wolfe Thompson
1960 Capo San Vito Ave., Las Vegas NV 89101
(702) 263-3030

Counsel for Defendant
Kathryn E. Landreth
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000