2709.12,30-34 Page 1 of 26 FOREST SERVICE HANDBOOK WASHINGTON FSH 2709.12 - ROAD RIGHTS-OF-WAY GRANTS HANDBOOK Amendment No. 2709.12-94-8 Effective September 29, 1994 POSTING NOTICE. Amendments are numbered consecutively by Handbook number and calendar year. Post by document name. Remove entire document and replace with this amendment. Retain this transmittal as the first page of this document. The last amendment to this Handbook was Amendment 2709.12-94-7 to 2709.12,30 Contents. Superseded New Document Name (Number of Pages) 30 thru 38--4 50 - 2709.12,30-34 - 24 Digest: 31 - Makes minor editorial revisions and changes the former term "cost-shared road" to "cost share road" throughout this section on Easement Grants to Cooperators. 31.1 - Revises and reorganizes direction on Qualifications for Grant. 31.2 - In this section on the Format of Easements, adds clause I to exhibit 01 (Form FS-2700-9d, Cost Share Easement). This clause restricts the right to use the road for access to developments for residential purposes. 31.4 - Removes the former section on Limited Easements Across United States Land and recodes section on Easements Authorizing Off-Highway Hauling (formerly sec. 31.5). 31.41 - Recodes section on Wording of Off-Highway Hauling Authorizations (formerly sec. 31.51) and changes the Off-Highway Hauling clause designation from clause I to clause E in exhibit 01. 31.42 - Recodes section on Administration of Off-Highway Hauling Clause (formerly sec. 31.52). Digest--Continued: 32.1 - Makes minor changes to clarify direction on Qualifications for Grant. 32.2 - Revises heading of exhibit 01 (Form FS-2700-9e, Non-Cost Share Easement (Forest Road and Trail Act)) and adds clause I, which restricts the right to use the road for access to developments for residential purposes. 32.3 - In this section, Procedure for Issuance, adds a cross- reference to the section in the Road Right-of-Way Construction and Use Agreement. JACK WARD THOMAS Chief FSH 2709.12 - ROAD RIGHTS-OF-WAY GRANTS HANDBOOK WO AMENDMENT 2709.12-94-8 EFFECTIVE 9/29/94 CHAPTER 30 - FOREST ROAD AND TRAIL ACT EASEMENTS 31 - EASEMENT GRANTS TO COOPERATORS FOR COST SHARE ROADS. The Forest Service with representatives of industry has developed the procedures and document formats for cost share agreements. The direction in FSM 5467 and FSH 5409.17 documents the agreement reached with industry. Develop an understanding of the policies and procedures before issuing any documents under this authority. 31.1 - Qualifications for Grant. 1. Before issuing an easement for the cost share road, ensure that the cooperator has: a. Already constructed or agreed to construct the cooperator's proportionate share of the road. Policy and procedures for cooperative construction arrangements appear in FSM 5467 and FSH 5409.17, chapter 60. b. Conveyed, or arranged for conveyance, to the United States easements needed by the Forest Service in order to make the road, or roads, a usable unit of the forest transportation system. Generally, the easements that must be granted to the United States are easements for road segments covered by the cooperative arrangements on lands or easements owned or controlled by the cooperator. 2. Where the cooperative road is entirely on National Forest System land or Government-owned easements, grant the cooperator a Forest Road and Trail Act (FRTA) of 1964 (16 U.S.C. 532-538) cost share easement (sec. 35) in accordance with the direction in FSM 5467. 3. If easements are needed across lands owned by third parties in order for the cooperative road to become a usable unit in the forest transportation system, obtain the easements from the third parties before granting FRTA cost share easements to the cooperator. Where either party acquires a right-of-way across a third-party property that provides all of the rights needed to make the proposed road a usable part of the system, and where the second- party has no outstanding easement rights, the cooperating parties shall share in reasonable acquisition costs as well as in construction costs. 4. Where the private cooperator has an outstanding easement that is permanent and adequate for the cooperator's needs but that does not convey sufficient rights for an exchange of easements under the cost share agreement, the Government shall proceed to acquire the additional rights needed to make the road a usable part of the system. If there is no existing road, the parties shall share the costs of constructing the road, but they shall not share the easement acquisition costs of either party. If there is an existing road, the parties shall share the cost of reconstruction, but not the easement acquisition costs, and each party shall consider the other to have borne its proportionate share of the construction costs for the existing road. 5. Where either party has a permanent easement that conveys all of the rights needed to grant easements to others, to control the use by others, and the authority to permit use by the public, the parties shall share road construction cost or contribution value, as appropriate, as if the road were located on land owned by the easement-holding party. 6. Where both the Government and the private cooperator hold an easement from a third-party landowner, the private cooperator shall subordinate its easement rights to the Government easement in consideration for the grant of a standard form cost share easement as provided for in the agreement. This will make the responsibility, rules, and regulations uniform on all roads in the agreement area. 31.2 - Format of Easement. Complete Form FS-2700-9d, Cost Share Easement, shown in exhibit 01 for easements granted to cooperators for cost share roads except for deletions, additions, and alternate clauses indicated on the form or authorized by FSM 5467 and FSH 5409.17. 31.2 - Exhibit 01 (Note: This exhibit becomes an attachment to the Road Right- of-Way Construction and Use Agreement as Exhibit D.) FS-2700-9d (07/93) OMB No. 0596-0082 (Ex-pires: 06/30/96) U. S. DEPARTMENT OF AGRICULTURE Holder No. Issue Date Forest Service - / / Type Site Authority Auth. Type COST SHARE EASEMENT 7 5 1 7 2 0 1 0 National Forest Roads and Trails Region/Forest/District State/County Act, October 13, 1964 / / / (78 Stat.1089; 16 U.S.C.532-538) Cong. Dist. Latitude Longitude -- - - - - THIS EASEMENT, dated this day of , 19 , from the United States of America, acting by and through the Forest Service, Department of Agriculture, hereinafter called Grantor, to a of the State of , hereinafter called Grantee. WITNESSETH: WHEREAS, Grantee has applied for a grant of an easement under the Act of October 13, 1964 (78 Stat. 1089; 16 U.S.C. 532- 538), for a road over certain lands or assignable easements owned by the United States in the County of , State of , and administered by the Forest Service, Department of Agriculture. NOW THEREFORE, Grantor, for and in consideration of received by Grantor, does hereby grant to Grantee, its successors and assigns, and to successors in interest to any lands now owned or hereafter acquired by Grantee (hereinafter collectively referred to as Grantee), subject to existing easements and valid rights, a perpetual easement for a road along and across a strip of land, hereinafter defined as the premises, (over and across the following described lands in the County of , State of :) (over and across the lands in the County of , State of , as described on exhibit A attached hereto). 1/ The word "premises" when used herein means said strip of land whether or not there is an existing road located thereon. Except where it is defined morespecifically, the word "road" shall mean roads now existing or hereafter constructed on the premises or any segment of such roads. (The location of said premises is shown (approximately) on exhibit attached hereto.) 31.2 - Exhibit 01--Continued (Said premises are described more specifically by a centerline description contained in exhibit attached hereto.) 1/ Said premises shall be on each side of the centerline with such additional width as required for accommodation and protection of cuts and fills. If the road is located substantially as described herein, the centerline of said road as constructed is hereby deemed accepted by Grantor and Grantee as the true centerline of the premises granted. If any subsequent survey of the road shows that any portion of the road, although located substantially as described, crosses lands of the Grantor not described herein, the easement shall be amended to include the additional lands traversed; if any land described herein is not traversed by the road as constructed, the easement traversing the same shall be terminated in the manner hereinafter provided. This grant is made subject to the following terms, provisions, and conditions applicable to Grantee, its permittees, contractors, assignees, and successors in interest: A. Except as hereinafter limited, Grantee shall have the right to use the road on the premises without cost for all purposes deemed necessary or desirable by Grantee in connection with the protection, administration, management, and utilization of Grantee's lands or resources, now or hereafter owned or controlled, subject to such traffic-control regulations and rules as Grantor reasonably may impose upon or require of other users of the road without reducing the rights herein granted: Provided, however, that any timber or other materials hauled by the Grantee from lands now owned by third parties in the agreement area as shown on exhibit , attached hereto, shall be treated as though hauled by someone else. Grantee shall have the right to construct, reconstruct, and maintain roads within the premises. Grantee's right to use the road shall include, but shall not be limited to, use for the purpose of operating and moving specialized logging vehicles and other equipment subject to the following limitations: Subject to compliance with legal dimensions and weights of motorvehicles imposed by State law on comparable public roads and highways: Provided, that dimensions, weights and configuration of equipment or vehicles shall not exceed the capacity of bridges and other structures, and Provided further, that cleated equipment shall not be used on paved roads. 2/ B. Grantee shall comply with all applicable State and Federal laws, Executive orders, and Federal rules and regulations, except that no present or future administrative rules or regulations shall reduce the rights herein expressly granted. 31.2 - Exhibit 01--Continued C. Grantee shall have the right to charge and to enforce collections from purchasers of timber or other materials when removed from Grantor's lands (within the agreement area shown on exhibit )3/ over the road at such rate per unit of material hauled, or at such higher rate as may be approved by the Regional Forester, as set forth in Road Right-of-Way Construction and Use Agreement dated , until such time as the amounts paid by such means or by credits received from Grantor shall total the amount set forth in said agreement. Timber or other materials hauled by Grantee from lands of the Grantor shall be regarded as though hauled by someone else. D. Grantee shall have the right to cut timber upon the premises to the extent necessary for constructing, reconstructing, and maintaining the road. Timber so cut shall, unless otherwise agreed to, be cut into logs of lengths specified by the timber owner and decked along the road for disposal by the owner of such timber. E. The costs of road maintenance shall be allocated on the basis of respective uses of the road. During the periods when either party uses the road or Grantor permits use of the road by others for hauling of timber or other materials, the party so using or permitting such use shall perform or cause to be performed, or contribute or cause to be contributed that share of maintenance occasioned by such use of the road. On any road maintained by Grantee, Grantee shall have the right to charge purchasers of National Forest timber and other commercial haulers, or to recover from available deposits held by the Grantor for such purchasers or haulers, reasonable maintenance charges based on the ratio that said hauling bears to the total hauling on such road. Grantor shall prohibit noncommercial use unless provision is made by Grantor or by the noncommercial users to bear proportionate maintenance costs. F. Grantee shall have the right to require any user of the road for commercial or heavy hauling purposes to post security guaranteeing performance of such user's obligations with respect to maintenance of the road and with respect to payments of any charges hereinabove stated as payable to Grantee for use of the road: Provided, that the amount of such security shall be limited to the amount reasonably necessary to secure such payment as approved by the Regional Forester. G. If it is customary in the industry in this locality to require liability insurance at the time commercial users are allowed to use the road, the Grantee shall have the right to require any user of the road for commercial hauling to procure, to maintain, and to furnish satisfactory evidence of liability insurance in a form generally acceptable in the trade and customary in this 31.2 - Exhibit 01--Continued area, insuring said party against liability arising out of its operation on the premises. The amount of the insurance that may be required shall be established by the Grantor based on the amount customarily carried by commercial haulers in this area. H. The Grantee shall maintain the right-of-way clearing by means of chemicals only after the Forest Supervisor has given specific written approval. Application for such approval must be in writing and must specify the time, method, chemicals, and the exact portion of the right- of-way to be chemically treated. I. The rights herein conveyed do not include the right to use the road for access to developments used for short or long-term residential purposes, unless and until traffic control regulations, rules, and other provisions to accommodate such use of the road are agreed upon by the Grantor and Grantee. This easement is granted subject to the following reservations by Grantor, for itself, its permittees, contractors, and assignees: 1. The right to use the road for all purposes deemed necessary or desirable by Grantor in connection with the protection, administration, management, and utilization of Grantor's lands or resources, now or hereafter owned or controlled, subject to the limitations herein contained, and subject to such traffic-control regulations and rules as Grantor may reasonably impose upon or require of other users of the road without reducing the rights herein granted to Grantee: Provided, that all use by the public for purposes of access to or from Grantor's lands shall be controlled by Grantor so as not unreasonably to interfere with use of the road by Grantee or to cause the Grantee to bear a shareof the cost of maintenance greater than Grantee's use bears to all use of the road. 2. The right alone to extend rights and privileges for use of the premises to other Government departments and agencies, States, and local subdivisions thereof, and to other users including members of the public except users of lands or resources owned or controlled by Grantee or its successors: Provided, that such additional use also shall be controlled by Grantor so as not unreasonably to interfere with use of the road by Grantee or to cause Grantee to bear a share of the cost of maintenance greater than Grantee's use bears to all use of the road. 3. The right to cross and recross the premises and road at any place by any reasonable means and for any purpose in such manner as will not interfere unreasonably with use of the road. 4. The right to all timber now or hereafter growing on the premises, subject to Grantee's right to cut such timber as hereinbefore provided. 31.2 - Exhibit 01--Continued (Provided that so long as the Road Right-of-Way Construction and Use Agreement dated remains in full force and effect, the terms and conditions thereof shall govern all aspects of use of the premises, including, but not limited to (construction), reconstruction, and maintenance of the road and the allocation and payment of costs thereof.) 1/ The Chief, Forest Service, may terminate this easement, or any segment thereof, (1) by consent of the Grantee, (2) by condemnation, or (3) after a five-(5) year period of nonuse, by a determination to cancel after notification and opportunity for hearing as prescribed by law; Provided: That the easement, or segment thereof, shall not be terminated for nonuse as long as the road, or segment thereof, is being preserved for prospective future use. IN WITNESS WHEREOF, the Grantor, by its (Title) , Forest Service, has executed this easement pursuant to the delegation of authority to the Chief, Forest Service, 7 CFR 2.60, and the delegation of authority by the Chief, Forest Service, dated August 22, 1984 (49 FR 34283), on the day and year first above written. UNITED STATES OF AMERICA (Title) Forest Service Department of Agriculture (APPROPRIATE ACKNOWLEDGMENT) 1/ Omit the word(s) in parentheses if not applicable. 2/ See FSH 5409.17, section 63.12, for wording to authorize loads in excess of highway loadings. 3/ Include words in parentheses only when the easement also includes a collection right applicable to outside timber. Public reporting burden for this collection of information, if requested, is estimated to average 1 hour per response for annual financial information; average 1 hour per response to prepare or update operation and/or maintenance plan; average 1 hour per response for inspection reports; and an average of 1 hour for each request that may include such things as reports, logs, facility and user information, sublease information, and other similar miscellaneous information requests. This includes the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to Department of Agriculture, Clearance Officer, OIRM, AG Box 7630, Washington D.C. 20250; and to the Office of Management and Budget, Paperwork Reduction Project (OMB # 0596-0082), Washington, D.C. 20503. . 31.2 - Exhibit 01--Continued 31.3 - Procedure for Issuance. A formal application is not required. The parties decide during the negotiations which clauses, limitations, and conditions are to be included. The easements should be prepared concurrently with the supplements. Either party may prepare the easement. Deliver the executed easement to the cooperator upon the receipt from the cooperator of the executed supplement which indicates that the cooperator has borne, or has agreed to bear, its share of the cost share road, and has conveyed or agreed to convey the related easements needed by the Forest Service. 31.4 - Easements Authorizing Off-Highway Hauling. 1. The easement format described in section 31.2 may be modified to provide for the use of off-highway haul (OHH) vehicles in: a. Existing agreement areas where roads with existing OHH rights are being extended, unless there is a foreseeable need to restrict the hauling to highway loads. b. New agreement areas where the cooperator, who is the dominant landowner, has an established OHH road system with a recent history of OHH use, and continued OHH use is reasonably anticipated in the future. A dominant landowner is one who has extensive land holdings of greater than 50 percent of the mixed ownership area or greater than 50 percent of the volume to be harvested. 2. Where private ownership area or tributary volume is less than 50 percent, easements across National Forest System land should not grant OHH provisions. Instead, if permissible and compatible with National Forest System and Forest land and resource management plan, authorize OHH use by a permit or use agreement as described in FSH 7709.59, section 26.2. 3. Do not issue an easement unless the cooperator agrees to bear all of the increased costs of constructing and maintaining the road to accommodate increased dimensions or loadings of OHH vehicles. 31.41 - Wording of Off-Highway Hauling Authorization. Except as noted in the following paragraphs, authorize OHH by inserting clause E (ex. 01), exactly as it appears, into the format shown in exhibit 01 of section 31.2. Where the following situations exist, the language and format of prior easements exchanged within the specific agreement area may be used in lieu of those in exhibit 01 of this section when: 1. The entire road network within the cost share agreement area is essentially in place and actively being used for OHH; the majority of the easements have already been provided and what are remaining are needed only to complete documentation of the existing system: or 2. A written agreement already exists that commits the Forest Service to an easement format or provisions different from those in exhibit 01 of this section. 31.41 - Exhibit 01 OFF-HIGHWAY HAULING EASEMENT CLAUSE (Note: For use in easement grants over National Forest System land.) E. Subject to the provisions of this clause, Grantee is authorized to use vehicles with dimensions and weight in excess of limitations provided by State law for use on State highways (herein referred to as "off-highway hauling") over the following Forest Development Roads or road segments for the purpose of hauling non-Federal forest products: 1/ Road Name Road Number Terminal This authorization is subject to the following terms and conditions: 1. Vehicles Authorized 1/ 2/ a. combined weight of vehicle and load shall not exceed pounds on the front axle and pounds on each additional axle. b. Total height of vehicle and local shall not exceed feet. c. The overall length of vehicle and its load, including trailers, shall not exceed feet. d. The overall width of vehicle and load shall not exceed feet. e. A maximum of additional trailer units per pulling vehicle are authorized. f. The use of cleated equipment on paved roads is prohibited. 2. Compliance with State and Local Laws - Except as expressly provided herein, the Grantee shall comply with all Federal, State, and local laws pertaining to the use of vehicles and roads. 3. Costs Borne by Grantee - The Grantee shall bear the costs of construction, reconstruction, repair, and maintenance, which are attributable to Grantee's use of roads for off-highway hauling. Attributable costs are all expenditures required in excess of costs normally required for construction, reconstruction, repair, and maintenance of roads designed to accommodate standard weight, height, and width limitations under State laws in effect at the time of construction. 4. Liability of Grantee - The Grantor disclaims any and all liability arising from Grantee's utilization of off-highway hauling pursuant to this authorization and Grantee will defend and indemnify the United States for any claim arising from such use. 31.41 - Exhibit 01 -- Continued 5. Temporary Modification of Terms and Conditions of Use - Upon written notice to Grantee, the Grantor may temporarily modify the width, weight, length, and height limitations herein upon a determination that off-highway hauling is causing or may cause material damage to National Forest resources, roads, bridges, and associated facilities; or is a hazard to public health or safety. Unless otherwise agreed in writing, such modifications shall remain in effect until the hazard is abated and all damage caused by off-highway hauling shall be repaired at Grantee's expense. Except in emergencies involving health or safety, the Grantor will consult with the Grantee before making any temporary modifications. 6. Suspension of Off-Highway Haul - The Grantor may suspend, without incurring liability to Grantee or any other party, all off-highway hauling use authorized herein for and during such time as the United States determines that such use poses an immediate threat to public health or safety or National Forest System resources until such threat is abated. Grantee shall suspend all off-highway hauling use upon receipt of written notice of suspension, or upon ay later date specified in the notice. Grantee's breach of the covenants contained in this clause may, at the option of the Grantor, result in suspension of off-highway hauling until Grantee has corrected all problems arising from past breaches and paid any damages resulting from breach. The Grantor may require satisfactory bonds or other assurances when it deems them necessary to protect the Government. The right to temporarily suspend off-highway hauling does not preclude or inhibit the right of the United States to terminate this authorization as provided for in paragraph 9. Except in emergencies involving health or safety, the Grantor will consult with the Grantee before making any temporary modifications. 7. Disputes - All disputes shall be handled through normal administrative appeal regulations of the Secretary of Agriculture at 36 CFR 251, Subpart C, or as may be amended from time to time. The parties at all times reserve their rights to judicial remedies. Should Grantee challenge any order of suspension, modification, termination in any administrative or judicial forum, such order shall remain in effect during the pendency of such proceedings, unless a stay is granted as part of the administrative or judicial review process. 8. Amendment - This authorization may be amended at any time by written mutual agreement of the parties. The United States may unilaterally modify the terms in paragraph 1 of this clause to meet identified public purposes. Any such unilateral modification shall be considered as a partial termination, and subject to paragraph 9 below for that portion of costs attributable to the reduced dimension or weight. 9. Termination - The United States reserves the right to terminate, in whole or in part, either for breach of its conditions or for public purposes. 31.41 - Exhibit 01 -- Continued In the event of termination for public purposes by the Grantor, the following conditions shall apply: a. If the Grantor terminates, in whole or part, this off- highway hauling authorization with at least 10 years' notice to Grantee, or for breach of the conditions of the authorization, the Grantee shall not be entitled to any compensation. b. If the Grantor terminates this off-highway hauling authorization with less than 10 years' notice for reasons other than breach of conditions, the United States shall reimburse the Grantee for certain remaining unamortized investments based on a 10-year straight line amortization for the following items: (1) Road improvements made during the 10-year period immediately preceding the actual date of termination, and which are attributable to off-highway hauling use except those short-term investments which are expected to be fully amortized prior to termination. (Gravel surfacing or temporary stabilization are examples of short-term investments which may be totally amortized between the time of notice and actual date of termination.) (2) Specialized off-highway hauling trucks purchased prior to the date of notice, but which will be owned for less than 10 years on the actual date of termination. No compensation will be made for specialized equipment acquired after the date of notice. Compensation for specialized trucks will be made only for those vehicles for which the cooperator has no other feasible use and which cannot be disposed of by sale. Salvage value will be deducted from the unamortized value for which compensation will be made. 10. Authorized Official - Authorities of the Grantor or the Forest Service provided herein shall be exercised by the Forest Supervisor or other authorized official. 1/ Listing of roads and their respective permitted vehicles may be shown in a table attached to the easement deed. 2/ Vehicle dimensions, weight, and configuration which can be safely accommodated shall be determined for each road or road segment based upon the capacity of the road in its present condition or as planned to be improved for immediate use. Omit nonapplicable terms. 31.42 - Administration of Off-Highway Hauling Clause. Where OHH is causing or may cause material damage to National Forest resources on structures, or is a hazard to public health or safety, consider the use of temporary modification of the terms or conditions to avoid the need to suspend or terminate OHH in total. Where it may be necessary to discontinue OHH use for a short term, the suspension provisions should be used. Suspension may be a matter of days, weeks, or even a few years; however, there must always be a good faith intent to restore the use. Suspension should not be used to exercise a de facto termination. When exercising the suspension provision, the time or conditions under which use may be resumed should be documented and agreed to by both parties. The same principles of suspension apply to provisions contained in easements granted to the Government across the cooperator's land. Any decision to suspend, amend, or terminate OHH use is subject to administrative review as provided in 36 CFR 251, Subpart C. The OHH authorization may be terminated for public purposes. These purposes may take several forms. For example, in the event the jurisdiction of the road should be transferred to a public road authority, it may be necessary to terminate the perpetual OHH provision in order to permanently remove any use that would be contrary to the laws of that public authority. Changes in land use by either party could also create the need for OHH termination. For instance, if a major resort were established on the cooperator's or National Forest System land, and that use generated a substantial increase in traffic that would be incompatible with OHH use, the OHH provision may need to be terminated. Since termination is permanent, it should be used only where necessary to meet substantial long-term needs that cannot be made otherwise through an appropriate amendment with mutually acceptable modifications of hauling limits or patterns. 32 - EASEMENT GRANTS TO COOPERATORS FOR NON-COST SHARE ROADS. 32.1 - Qualifications for Grant. 1. The easement must be within an "agreement area" as defined in a cooperative road construction and use agreement. 2. The road on the easement must be constructed at the sole expense of the grantee (cooperator). 3. The road to be built on the easement must be one that the Forest Service determines is not needed for National Forest System purposes. 4. The need for the road by the cooperator is permanent or long term and the road to be constructed is permanent in nature. Unless all four qualifications are met, issue a Federal Land Policy and Management Act (FLPMA) special-use authorization (ch. 40). Temporary work roads should be covered by a special-use permit that is terminated upon completion of use (sec. 41.24; FSM 5467). 32.2 - Format of Easement. Complete Form 2700-9e, Non-Cost Share Easement, shown in exhibit 01. 32.2 - Exhibit 01 (Note: This exhibit becomes an attachment to the Road Right-of- Way Construction and Use Agreement as Exhibit F.) FS-2700-9e (07/93) OMB No. 0596-0082 (Expires: 06/30/96) U. S. DEPARTMENT OF AGRICULTURE Holder No. Issue Date - Forest Service Type Site Authority Auth. Type NON-COST SHARE EASEMENT 7 5 1 7 2 0 1 0 National Forest Roads and Trails Region/Forest/District State/County Act, October 13, 1964 / / / (78 Stat.1089; 16 U.S.C.532-538) Cong. Dist. Latitudde Longitude -- -- -- THIS EASEMENT, dated this day of , 19 , from the United States of America, acting by and through the Forest Service, Department of Agriculture, hereinafter called Grantor, to , a of the State of , hereinafter called Grantee. WITNESSETH: WHEREAS, Grantee has applied for a grant of an easement under the Act of October 13, 1964 (78 Stat. 1089, 16 U.S.C. 532-538), for a road over certain lands owned by the United States in the County of , State of , and administered by the Forest Service, Department of Agriculture. NOW THEREFORE, Grantor, for and in consideration of the grant of reciprocal easements received by Grantor, does hereby grant to Grantee, its successors and assigns, and to successors in interest to any lands now owned or hereafter acquired by Grantee (hereinafter collectively referred to as Grantee), subject to existing easements and valid rights, a perpetual easement for a road along and across a strip of land, hereinafter defined as the premises, (over and across the following described lands in the County of , State of :)(over and across the lands in the County of , State of , as described on exhibit A attached hereto). 1/ The word "premises" when used herein means said strip of land whether or not there is an existing road located thereon. Except where it is defined more specifically, the word "road" shall mean roads now existing or hereafter constructed on the premises or any segment of such roads. (The location of said premises is shown (approximately) on exhibit attached hereto.) (Said premises are described more specifically by a centerline description contained in exhibit attached hereto.) 1/ 32.2 - Exhibit 01--Continued Said premises shall be on each side of the centerline with such additional width as required for accommodation and protection of cuts and fills. If the road is located substantially as described herein, the centerline of said road as constructed is hereby deemed accepted by Grantor and Grantee as the true centerline of the premises granted. If any subsequent survey of the road shows that any portion of the road, although located substantially as described, crosses lands of the Grantor not described herein, the easement shall be amended to include the additional lands traversed; if any land described herein is not traversed by the road as constructed, the easement traversing the same shall be terminated in the manner hereinafter provided. This grant is made subject to the following terms, provisions, and conditions applicable to Grantee, its permittees, contractors, assignees, and successors in interest: A. Grantee shall comply with all applicable State and Federal laws, Executive orders, and Federal rules and regulations, except that no present or future administrative rule or regulation shall reduce the rights herein expressly granted. B. Grantee shall have the right to cut timber upon the premises to the extent necessary for constructing, reconstructing, and maintaining the road. Timber so cut shall, unless otherwise agreed to, be cut into logs of lengths specified by the timber owner and decked along the road for disposal by the owner of such timber. C. Grantee shall have the right to use the road on the premises without cost for all purposes deemed necessary or desirable by Grantee in connection with the protection, administration, management, and utilization of Grantee's lands or resources, now or hereafter owned or controlled. Grantee alone may extend such rights and privileges for use of the premises to others. D. The Grantee shall maintain the right-of-way clearing by means ofchemicals only after specific written approval has been given by the Forest Supervisor. Application for such approval must be in writing and specify the time, method, chemicals, and the exact portion of the right-of-way to be chemically treated. E. The rights herein conveyed do not include the right to use the road for access to developments used for short or long-term residential purposes, unless and until traffic control regulations, rules, and other provisions to accommodate such use of the road are agreed upon by the Grantor and Grantee. The foregoing notwithstanding, this easement is granted subject to the following reservations by Grantor, for itself, its permittees, contractors, and assignees: 32.2 - Exhibit 01--Continued 1. The right to use the roads without cost for all purposes deemed necessary or desirable by Grantor in connection with the protection and administration of Grantor's lands or resources, now or hereafter owned or controlled: Provided, that such right of use shall not include use of the road by the public or use for heavy hauling except to remove timber cut on the premises in construction or maintenance of the road. 2. The right to cross and recross the premises and road at any place by any reasonable means and for any purpose in such manner as will not interfere unreasonably with use of the road. 3. The right to all timber now or hereafter growing on the premises, subject to Grantee's right to cut such timber as hereinbefore provided. (Provided, that as long as the Road Right- of-Way Construction and Use Agreement dated remains in full force and effect, the terms and conditions thereof shall govern all aspects of use of the premises, including, but not limited to (construction), reconstruction, and maintenance of the road.) 1/ The Chief, Forest Service, may terminate this easement, or any segment thereof, (1) by consent of the Grantee, (2) by condemnation, or (3) after a five-(5) year period of nonuse, by a determination to cancel after notification and opportunity for hearing as prescribed by law: Provided; That the easement, or segment thereof, shall not be terminated for nonuse as long as the road, or segment thereof, is being preserved for prospective future use. IN WITNESS WHEREOF, the Grantor, by its (Title) , Forest Service, has executed this easement pursuant to the delegation of authority to the Chief, Forest Service, 7 CFR 2.60, and the delegation of authority by the Chief, Forest Service, dated August 22, 1984 (49 FR 34283), on the day and year first above written. UNITED STATES OF AMERICA (Title) Forest Service Department of Agriculture (APPROPRIATE ACKNOWLEDGMENT) 1/ Omit the word(s) in parentheses if not applicable. 32.2 - Exhibit 01--Continued Public reporting burden for this collection of information, if requested, is estimated to average 1 hour per response for annual financial information; average 1 hour per response to prepare or update operation and/or maintenance plan; average 1 hour per response for inspection reports; and an average of 1 hour for each request that may include such things as reports, logs, facility and user information, sublease information, and other similar miscellaneous information requests. This includes the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to Department of Agriculture, Clearance Officer, OIRM, AG Box 7630, Washington D.C. 20250; and to the Office of Management and Budget, Paperwork Reduction Project (OMB # 0596-0082), Washington, D.C. 20503. 32.3 - Procedure for Issuance. Sections 2, 3, and 13 of the Road Right-of-Way Construction and Use Agreement (FSH 5409.17, sec. 61, ex. 01) describe the procedure for issuance of non-cost share road easements. 33 - REPLACEMENT OF PRIOR GRANTS TO COOPERATORS. 33.1 - Qualifications for Grant. 1. The applicant must hold the right-of-way currently under one of the following instruments: a. A special-use permit under which the applicant constructed and is using the road. b. An easement issued by the Bureau of Land Management under authority of the Act of March 3, 1899 (30 Stat. 1233, 16 U.S.C. 525). c. Stipulations for rights of ingress and egress issued by the Forest Service under the Act of June 4, 1897, under which the applicant constructed and is using the road. Treat these stipulations as a permit for the purpose of replacement with Forest Road and Trail Act easements. 2. The applicant must have conveyed easements needed by the Forest Service to make the road a usable unit of the forest transportation system. 3. The applicant has borne its proportionate share of the construction cost of the road. The Forest Service shall grant an easement automatically to holders of Bureau of Land Management easements upon application in accordance with regulation 36 CFR 212.10(c)(1). 33.2 - Form of Easements. For the Forest Road and Trail Act (FRTA) easements granted as replacements for prior grants, use the format of section 31.2, exhibit 01 or section 32.2, exhibit 01, whichever is appropriate. However, ensure that the easement does not grant rights that the grantee did not or was not intended to have under the prior grant and that, if granted, would impair the usefulness of the road for the Government's purposes, or add to costs of administering the road. For example, in replacing a Bureau of Land Management (BLM) easement with an FRTA easement, the limitations on using off-highway equipment must be such that the rights of the grantee in this respect do not exceed those authorized as under the Bureau of Land Management easements. 33.3 - Procedure for Issuance. Each Regional Forester shall prescribe the form and procedures for replacement easement applications. Applications must include a request for, or consent to, cancellation of all rights under the prior grant. Such cancellation shall be effective when the FRTA easement is executed. Prepare relinquishment of BLM easements in the form approved by the appropriate State Director and transmit to the Director for action. 34 - GRANTS TO PUBLIC ROAD AGENCIES. See FSM 7700 for policy considerations that bear on a decision to grant an easement to a public road agency for a public road. The easement may be over National Forest System land, or easements, on which the public road agency will build a road or assume jurisdiction of an existing road. The Forest Service may cooperate in construction of the road under appropriate agreement. An easement for an already existing road has the effect of turning over jurisdiction of the road to the public road agency. 34.1 - Form of Easements. Use the format in exhibit 01, except for the changes discussed in this section, for easements granted to public road agencies for public roads. Keep alterations, deletions, and additions to fit special circumstances to a minimum. When changes are needed, prepare the language changes or additions in cooperation with and with the approval of the attorney in charge. Some of the more common situations requiring modifications in the easement form include: 1. Existing Road in Place With No Reconstruction Planned. Delete clause 3 and the phrase in clause 2, "in accordance with approved plans, specifications, and stipulations described in the following conditions numbered 3 and 4." The remaining clauses of the standard form adequately cover any subsequent work that may take place on the right-of-way, including reconstruction without enlargement or realignment of the road. 2. Grant of Easement Owned by United States When No Restrictions on Use by Public Road Authority Are Required. When it is desirable to convey a road built on acquired easements, it is often not necessary or desirable for the Forest Service to retain any control over reconstruction, maintenance, or other work the public road authority may perform on the right-of-way. In such cases, the grant simply would convey all interests in the easements owned by the United States to the public road authority. Make appropriate changes in the granting clause and description; delete the numbered conditions; and retain the recitals, termination clause, nondiscrimination covenant, and concluding paragraph. 3. Grant of Easement Owned by United States When Restrictions on Use by Public Road Agency Are Required. Usually, when the road to be conveyed is partly on acquired easements and partly on National Forest land, it is desirable that the conditions affecting use of the right-of-way located on National Forest land also apply to the acquired easement being granted. In such cases, the suggested form would need modification only in the granting clause and the description. This assumes the acquired easement being granted is not in conflict with any of the proposed conditions. 34.1 - Exhibit 01 PUBLIC ROAD EASEMENT THIS EASEMENT, dated this day of , 19 , from the UNITED STATES OF AMERICA, acting by and through the Forest Service, Department of Agriculture, hereinafter called Grantor, to hereinafter called Grantee. WITNESSETH: WHEREAS, the Grantee has applied for a grant of an easement under the Act of October 13, 1964 (78 Stat. 1089, 16 U.S.C. 532-538), for a road over certain lands or assignable easements owned by the United States in the County of , State of , and administered by the Forest Service, Department of Agriculture. NOW THEREFORE, Grantor does hereby grant to Grantee an easement for a public road and highway along and across a strip of land, hereinafter defined as the right-of-way (over and across the following described lands in the County of , State of :)(over and across the lands in the County of , State of , as described on exhibit A attached hereto.) 1/ The word "right-of-way" when used herein means said strip of land whether or not there is an existing road or highway located thereon. Except where it is defined more specifically, the word "highway" shall mean roads or highways now existing or hereafter constructed on the right-of-way or any segment of such roads or highways. The right-of-way is shown and specifically described on the plat attached hereto and made a part hereof. This grant is made subject to the following terms, provisions, and conditions: 1. Outstanding valid claims, if any, existing on the date of this grant. 2. The easement herein granted is limited to use of the described right-of-way for the purpose of construction, operation, and maintenance of a highway (in accordance with approved plans, specifications, and stipulations described in the following conditions numbered 3 and 4)2/ and does not include the grant of any rights for nonhighway purposes or facilities; Provided, That the Forest Service shall not exercise its right to use or authorize the use of any portion of the right-of-way for nonhighway purposes when such use would interfere with the free flow of traffic or impair the full use and safety of the highway; and Provided further, That nothing herein shall preclude the Forest Service from locating National Forest and other Department of Agriculture information signs on the portions of the right-of-way outside of construction limits. 34.1 - Exhibit 01--Continued 3. The design and construction of the highway project situated on this right-of-way shall conform with plans, specifications, and written stipulations approved by the Forest Supervisor.) 2/ 4. Any reconstruction of the highway situated on this right- of-way shall conform with plans, specifications, and written stipulations approved by the Forest Supervisor or authorized representative prior to beginning such reconstruction. 5. Consistent with highway safety standards, the Grantee shall: (a) Protect and preserve soil and vegetative cover and scenic and esthetic values on the right-of-way outside of construction limits. (b) Provide for the prevention and control of soil erosion within the right-of-way and adjacent lands that might be affected by the construction, operation, or maintenance of the highway, and shall vegetate and keep vegetated with suitable species all earth cut or fill slopes feasible for revegetation or other areas on which ground cover is destroyed. The Grantee shall perform these activities where it is deemed necessary during a joint review between the authorized Forest Officer and Grantee prior to completion of the highway. The Grantee also shall maintain all terracing, water bars, leadoff ditches, or other preventive works that may be necessary to accomplish this objective. This provision also shall apply to waste disposal areas and slopes that are reshaped following slides that occur during or after construction. 6. The Grantee shall: Establish no borrow, sand, or gravel pits; stone quarry; permanent storage areas; sites for highway-operation and maintenance facilities; camps; supply depots; or disposal areas within the right-of-way, unless shown on approved construction plans, without first obtaining approval of the authorized Forest Officer. 7. The Grantee shall maintain the right-of-way clearing by means of chemicals only after the Forest Supervisor has given specific written approval. Application for such approval must be in writing and must specify the time, method, chemicals, and the exact portion of the right-of-way to be chemically treated. 8. The Grantee does by the acceptance of this document covenant and agree for itself, its assigns, and its successors in interest to the property here granted or any part thereof, that the covenant set forth below shall attach to and run with the land: 34.1 - Exhibit 01--Continued (a) That the Grantee shall operate the described property and its appurtenant areas and its buildings and facilities whether or not on the land therein granted as a public road, in full compliance with Title VI of the Civil Rights Act of 1964 and all requirements imposed by or pursuant to the regulations issued thereunder by the Department of Agriculture and in effect on the date of this document to the end that no person in the United States shall, on the grounds of race, sex, color, religion, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any programs or activities provided thereon; and (b) That the United States shall have the right to judicial enforcement of these covenants not only as to the Grantee, its successors and assigns, but also as to lessees and licensees doing business or extending services under contractual or other arrangements on the land therein conveyed. The Chief, Forest Service, may terminate this easement, or any segment thereof, (1) by consent of the Grantee, (2) by condemnation, or (3) after a five (5) year period of nonuse, by a determination to cancel after notification and opportunity for hearing as prescribed by law. IN WITNESS WHEREOF, the Grantor, by its (Title) , Forest Service, has executed this easement pursuant to the delegation of authority to the Chief, Forest Service, 7 CFR 2.60, and the delegation of authority by the Chief, Forest Service, dated August 22, 1984 (49 FR 34283), on the day and year first above written. UNITED STATES OF AMERICA (Title) Forest Service Department of Agriculture (APPROPRIATE ACKNOWLEDGMENT) 1/ Omit the word(s) in parentheses if not applicable. 2/ Delete for existing road easement. 34.2 - Procedure for Issuance. A formal application is not required. Correspondence between the public road authority and the Forest Supervisor establishes the need for the grant. When a road is to be built on the right-of-way or an existing road is to be reconstructed immediately, the regional Forester shall not execute the easement until the Forest Supervisor has reviewed and approved the plans and specifications. Written stipulations may be incorporated as part of the approved plans. Select appropriate stipulations from those approved for use in construction of Federal-aid highways (sec. 21.22). Include written stipulations only to the extent that the project plans and specifications do not cover them. Regional Foresters execute the easements and should develop and describe procedures for processing these grants. 34.3 - Nondiscrimination in Federally Assisted Programs. The granting of an easement to a public road agency without charge constitutes Federal financial assistance to a primary recipient who extends the assistance to the public using the road. Therefore, an assurance clause is required and has been included in the easement format to be granted to public road agencies. Omit the reverter clause unless extenuating circumstances make its inclusion advisable.