32 ELR 20321 -- United States v. Srnsky

United States v. Srnsky

No. 01-1163 (271 F.3d 595) (UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT November 29, 2001)

ELR Digest

The court vacates a district court decision holding that owners of property surrounded by a national forest in West Virginia do not have an express or implied easement to use a U.S. Forest Service road that provides the sole access to their property. The owners' predecessors conveyed 742 acres of land to the United States, while reserving 6.8 acres for their own use, and the conveyed land eventually became part of the national forest. Subsequently, the Forest Service filed a complaint seeking to compel the owners to apply for a special use permit to use the road. The court first holds that in finding for the Forest Service, the district court addressed only prescriptive easements and easements by necessity, not implied easements from prior use, known as easements by implication. West Virginia recognizes common-law easements by implication, and such easements can only be lost through adverse possession. Here, the owners claim an easement by implication because the road is the road the original owner used to access the property, and the use of the road was open, apparent, and necessary before the conveyance to the government. Moreover, the National Forest Service Organic Act of 1897, which grants actual settlers of land within national forest boundaries a right of access, does not eliminate the necessity required for the creation of an implied easement at the time of the conveyance. Since the original owners sold the land to the government, they were not settlers in the national forest. Likewise, the Act only applies to forests reserved from public land, and the conveyance did not involve public land. The court next holds that federal law does not preempt the owners' potential easement rights. A federal statute that allegedly allows the government to regulate easements in national forests does not apply because the statute requires that any rule or regulation applied to the easement must be expressed in part of the instrument of conveyance, and the deed to the owners' property includes no such regulation. Similarly, § 1323 of the Alaska National Interest Lands Conservation Act, which requires owners of nonfederal lands within the national forests to comply with rules and regulations applicable to ingress and egress, does not apply because § 1323 merely authorizes the Forest Service to provide access to inholders and does not affect existing rights or impact state law.

The full text of this opinion is available from ELR (11 pp., ELR Order No. L-404).

Counsel for Plaintiff
David J. Lazerwitz
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
Roger J. Marzulla
Marzulla & Marzulla
1350 Connecticut Ave. NW, Washington DC 20036
(202) 822-6760

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]