5409.17,50 Page 1 of 3 FSH 5409.17 - RIGHTS-OF-WAY ACQUISITION HANDBOOK WO AMENDMENT 5409.17-91-1 EFFECTIVE 9/3/91 CHAPTER 50 - SPECIAL TYPES OF RIGHTS-OF-WAY 51 - TERM EASEMENTS. For temporary roads, obtain term easements or permits rather than permanent easements. Do not acquire term easements for roads on the forest development road system. For various reasons, landowners sometimes prefer to grant term easements rather than permits. The restrictions on paying for permits often require the Government to take term easements it can pay for in total at the time of acquisition. In case of dispute, a recorded easement may be more easily enforced. Term easements may be acquired through condemnation proceedings in the same manner as permanent easements. In form and content, term easements should conform as closely as possible to the form used for permanent easements (sec. 11.1). The principal difference is that the easement terminates on a specified date. In Regions where the need for term easements is extensive, develop a form in consultation with the Regional Attorney and publish it as a Manual supplement together with instructions for its use. Acquire term easements in the same manner as permanent easements. The requirements for title approval of permanent easements generally apply to term easements but may be modified by the Regional Attorney where appropriate. 52 - PERMITS. Forest Supervisors may obtain permits for either construction of a temporary road or the temporary use of a private road. Do not obtain permits for roads that are on, or that should be on, the forest development road system. Obtain a permit when the need is for a minor road, for short-term use, and when the permit is free or for a nominal one-time charge. There is no prescribed form for a permit, except for permits obtained through Road Rights-of-Way Construction and Use Agreements (sec. 61, ex. 01d). Regional Foresters, in consultation with the Regional Attorney, shall develop forms and instruction to meet the needs in their Regions. Title approval for permits is not mandatory. If there are any questions regarding the title of the grantors or the terms of the permit, consult with the Regional Lands Staff. 53 - HIGHWAY ENCROACHMENT PERMITS. State highway approaches for forest roads normally require an encroachment permit or a similar document. These are a type of right-of-way. The form of the permit and the conditions vary with State laws. Title approval is not mandatory, but consult the Regional Attorney regarding the terms of the permits. Some State forms have requirements that the Government cannot accept. Participation of the Regional Attorney in negotiations with State highway departments is often helpful. 54 - ROAD RENTAL AGREEMENTS. Permits that call for payments by the users on an "as used" basis for use of existing roads are road rental agreements. Do not accept rental agreements for roads that are or should be part of the forest development road system. Road rental agreements are often preferable to permits or temporary easements for short-term or periodic use of private roads that are not planned for purchase as part of the forest development road system. Use a rental agreement instead of a temporary easement or permits under the following conditions: 1. The need to use the road is for timber hauling, and the timber purchaser should bear the payment for use of the road. 2. It is preferable that the road owner control traffic under the owner's rules rather than for the Government to control its own traffic as it would under an easement interest. 3. The road owner prefers a rental agreement rather than granting a temporary easement. 54.1 - Form and Contents of Rental Agreements. Because of the great variety of conditions affecting the formation of rental agreements, no form is prescribed for general use. Draft agreements in consultation with the Regional Fiscal Agent and Regional Attorney; both should approve the form used. The agreement should include the following points: 1. The road owner agrees to allow purchasers of National Forest timber to haul over the road upon payment of a stated rate per thousand board feet hauled. If varying lengths of road will be used, the unit of use should be a thousand board feet per mile. 2. Spell out the arrangements for making payment to ensure prompt payment and refunds of overpayments. The Forest Service can make the collections from timber purchasers and pay them to the road owner under authority of the Act of October 13, 1964, (16 U.S.C. 538). Make payments from purchaser's deposit only after timber has been hauled and measured. 3. Specify the time period during which the agreement will remain in force. The period should cover at least the life of the proposed timber sale plus 1 year. Do not write the agreement as a contract requiring use of the road; rather, it is an agreement covering such use as the Government may authorize during the period the agreement is in force. 4. Specify that road owner's traffic rules that Government users must follow also must apply to the road owner's traffic. When necessary, spell out the traffic rules in the agreement. 5. Authorize the Forest Service to use the road for administration and protection of National Forest land without charge or becoming liable for maintenance payments. The agreement must cover maintenance arrangements. Normally, where road owners do the maintenance, the road owners prefer that users pay their share of maintenance costs directly to them. Include rates for maintenance payments in the agreement where payments are to be made directly to the owner. The Forest Service can agree to make the collections for maintenance and pay the road owner as described in item 2. The Forest Service can agree to require its timber purchasers to perform maintenance if the road owner is not maintaining the road. In any case, maintenance specifications or payment requirements should be included in the agreement and timber sale. Requirements that the Government's users carry libility insurance in stated maximum amounts covering their operations on the roads are acceptable. 55 - CONSTRUCTION AND MAINTENANCE AGREEMENTS WITH PUBLIC ROAD AGENCIES. See FSH 1509.11 for sample forest road agreements and instructions for application and use with States, counties, and local road agencies.