United States v. Jenks
Citation: 28 ELR 20392
No. 96-2106, 129 F.3d 1348/(10th Cir., 11/17/1997)
The court holds that a ranch owner with inholdings within the Apache National Forest and the Gila River Forest Reserve in New Mexico does not have a preexisting patent right or a common-law easement allowing access to the inholdings. The court first holds that the government's claims regarding the ranch owner's use of the access roads is moot. The government granted 30-year public road easements to Catron County, New Mexico, for use of the three access roads on the same day that the ranch owner filed his notice of appeal from the district court's order on remand. Thus, the ranch owner may use the three roads to access his inholdings free of any conditions or fees whatsoever. The court next vacates the district court's finding that conditions in the proposed special use permits for access over the roads were reasonable, and the district court's injunction prohibiting the ranch owner from using the access roads until the requisite permits were obtained. The court then dismisses the government's complaint without prejudice. Because the government caused those issues to become moot, the court cannot permit the district court's decision on those issues to stand. A party unable to seek review on the merits of an adverse ruling because of the unilateral action of the prevailing party ought not in fairness be forced to acquiesce in the judgment. However, the court agrees with the government and the ranch owner that the ranch owner's counterclaims of preexisting patent and common-law rights of access over the roads remain viable.
The court next holds that the ranch owner does not have an easement by necessity to the access roads. The public road easements that the government granted to the county give the ranch owner an unconditional right of access to his ranches. If and after those easements lapse or terminate, the ranch owner in all likelihood will still have a statutory right of access under the Alaska National Interest Lands Conservations Act and the Federal Land Policy and Management Act, or some other federal statutory scheme, albeit subject to reasonable government regulation. The court next holds that the land patents that the government granted the ranch owner's predecessors-in-title did not contain implied easements for use of the access roads. Nothing in the Homestead Act, which the ranch owner relies on to support his argument, suggests that Congress intended to abrogate its right to regulate access over roads located on federal lands. Further, unlessa public grant explicitly conveys property, the court will construe the grant in favor of the government. Last, the court holds that the government patents granted to the ranch owner's predecessors-in-title did not expressly grant them easements in the access roads. The ranch owner's predecessors-in-title could not have received express access easements over roads that did not exist at the time of the government's conveyance. Even assuming all three access roads existed at the time of the government's patents, the language "with the appurtenances thereof" is not sufficient to grant the ranch owner and his predecessors-in-title express easements over the access roads as against the government.
[Briefs and Pleadings in this litigation are published at ELR BRIEFS & PLEADS. 66532.]
Counsel for Plaintiff
William B. Lazarus
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
Counsel for Defendant
Steven J. Lechner
Mountain States Legal Foundation
1660 Lincoln St., Ste. 2300, Denver CO 80264
Before Porfilio and Anderson, JJ.