[Code of Federal Regulations]
[Title 36, Volume 2]
[Revised as of July 1, 2008]
From the U.S. Government Printing Office via GPO Access
[CITE: 36CFR251.114]

[Page 344-345]
 
              TITLE 36--PARKS, FORESTS, AND PUBLIC PROPERTY
 
          CHAPTER II--FOREST SERVICE, DEPARTMENT OF AGRICULTURE
 
PART 251_LAND USES--Table of Contents
 
                  Subpart D_Access to Non-Federal Lands
 
Sec. 251.114  Criteria, terms and conditions.

    (a) In issuing a special-use authorization for access to non-Federal 
lands, the authorized officer shall authorize only those access 
facilities or modes of access that are needed for the reasonable use and 
enjoyment of the land and that minimize the impacts on the Federal 
resources. The authorizing officer shall determine what constitutes 
reasonable use and enjoyment of the lands based on contemporaneous uses 
made of similarly situated lands in the area and any other relevant 
criteria.
    (b) Landowners must pay an appropriate fee for the authorized use of 
National Forest System lands in accordance with Sec. 251.57 of this 
part.
    (c) A landowner may be required to provide a reciprocal grant of 
access to the United States across the landowner's property where such 
reciprocal right is deemed by the authorized officer to be necessary for 
the management of adjacent Federal land. In such case, the landowner 
shall receive the fair market value of the rights-of-way granted to the 
United States. If the value of the rights-of-way obtained by the 
Government exceeds the value of the rights-of-way granted, the 
difference in value will be paid to the landowner. If the value of the 
rights-of-way across Government land exceeds the value of the rights-of-
way across the private land, an appropriate adjustment will be made in 
the fee charged for the special-use authorization as provided in Sec. 
251.57(b)(5) of this part.
    (d) For access across National Forest System lands that will have 
significant non-Forest user traffic, a landowner may be required to 
construct new roads or reconstruct existing roads to bring the roads to 
a safe and adequate standard. A landowner also may be required to 
provide for the operation and maintenance of the road. This may be done 
by arranging for such road to be made part of the local public road 
system, or formation of a local improvement district to assume the 
responsibilities for the operation and maintenance of the road as either 
a private road or as a public road, as determined to be appropriate by 
the authorizing officer.
    (e) When access is tributary to or dependent on forest development 
roads, and traffic over these roads arising from the use of landowner's 
lands exceeds their safe capacity or will cause damage to the roadway, 
the landowner(s) may be required to obtain a road-use permit and to 
perform such reconstruction as necessary to bring the road to a safe and 
adequate standard to accommodate such traffic in addition to the 
Government's traffic. In such case, the landowner(s) also shall enter 
into a cooperative maintenance arrangement with the Forest Service

[[Page 345]]

to ensure that the landowner's commensurate maintenance responsibilities 
are met or shall make arrangements to have the jurisdiction and 
maintenance responsibility for the road assumed by the appropriate 
public road authority.
    (f) In addition to ensuring that applicable terms and conditions of 
paragraphs (a) through (e) of this section are met, the authorizing 
officer, prior to issuing any access authorization, must also ensure 
that:
    (1) The landowner has demonstrated a lack of any existing rights or 
routes of access available by deed or under State or common law;
    (2) The route is so located and constructed as to minimize adverse 
impacts on soils, fish and wildlife, scenic, cultural, threatened and 
endangered species, and other values of the Federal land;
    (3) The location and method of access is as consistent as reasonably 
possible with the management of any congressionally designated area and 
is consistent with Forest Land and Resource Management Plans or the 
plans are amended to accommodate the access grant, and;
    (4) When access routes exist across the adjacent non-Federal lands 
or the best route as determined by the authorizing officer is across 
non-Federal lands, the applicant landowner has demonstrated that all 
legal recourse to obtain reasonable access across adjacent non-Federal 
lands has been exhausted or has little chance of success.
    (g) In addition to the other requirements of this section, the 
following factors shall be considered in authorizing access to non-
federally owned lands over National Forest System lands which are 
components of the National Wilderness Preservation System:
    (1) The use of means of ingress and egress which have been or are 
being customarily used with respect to similarly situated non-Federal 
land used for similar purposes;
    (2) The combination of routes and modes of travel, including 
nonmotorized modes, which will cause the least lasting impact on the 
wilderness but, at the same time, will permit the reasonable use of the 
non-federally owned land;
    (3) The examination of a voluntary acquisition of land or interests 
in land by exchange, purchase, or donation to modify or eliminate the 
need to use wilderness areas for access purposes.