5409.17,61.1-61.3 Page 1 of 11 FOREST SERVICE HANDBOOK WASHINGTON FSH 5409.17 - RIGHTS-OF-WAY ACQUISITION HANDBOOK Amendment No. 5409.17-94-3 Effective September 12, 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 5409.17-94-2 to 5409.17,60-61. This amendment supersedes Amendment 5409.17-91-1 to FSH 5409.17,61.1-61.3. Superseded New Document Name (Number of Pages) 5409.17,61.1-61.3 9 11 Digest: 61.1 - 61.3 - Revises and clarifies direction on completing the preamble (sec. 61.1), body (sec. 61.2), and exhibits (sec. 61.3) of the standard format for the Road Right-of-Way Construction and Use Agreement. 61.2 - Adds paragraph containing direction on "Section 16 - Change in Ownership," in the agreement and renumbers succeeding Sections 17-19 of the agreement. JACK WARD THOMAS Chief FSH 5409.17 - RIGHTS-OF-WAY ACQUISITION HANDBOOK WO AMENDMENT 5409.17-94-3 EFFECTIVE 9/12/94 61.1 - Preamble. 1. Parties to Agreement. The standard agreement is written for two parties. To accommodate more than one cooperator in a single agreement, modify the agreement as follows: a. Paragraph One. Expand the second line as necessary to permit naming the additional cooperating parties. Insert the word "collectively" after the word "hereinafter" in the third line. The cooperating parties are then referred to collectively as the cooperator in the agreement. b. Section 19. Expand this section to accommodate the addresses of all cooperators. c. Signature Block. Expand the signature block to provide for signing by all parties. 2. Location. Indicate the state, county, and National Forest. 3. Agreement Area. Identify the area within which the parties intend to cooperatively develop and use a road system. Agreement areas may be as large or as small as necessary to meet the joint development needs of all the parties. Do not include all lands or resources that ultimately may be tributary to the existing or planned transportation system; this would be unnecessary since the anticipated use of the road for timber or other resources outside of the agreement area must be included when determining each party's share. Do not include large blocks of solid ownership within the agreement area when the other party is not interested in cost sharing. Include only the area in which the road system(s) will be jointly developed. Economic factors, topographic limitations, operating plans, and mutual needs for road development ordinarily are principal determinants of the area the agreement is to cover. Delineate the area agreed upon for cooperative development on a legible map and incorporate the map in the agreement as Exhibit A. 4. Ownership. Show each party's landownership within the agreement area on Exhibit A. 61.2 - Body. The body of the agreement contains 19 sections. 1. Section 1 - Agreement Supplement Prerequisite to Joint Financing of Roads. The agreement provides the general principles needed to construct, reconstruct, maintain, and use a joint road system. In order for roads to be jointly financed and used, the parties must document the work and shares in consecutively numbered supplements (Exhibit B to the agreement). The agreement is not binding upon the parties to build any road except to the extent of executed supplements. 2. Section 2 - Necessary Elements of Agreement Supplement. Either party may initiate a supplement. When the parties have reached agreement on the following elements, the initiating party may prepare a supplement: a. Identification of road or roads. b. Plans and specifications. c. Construction or reconstruction program and assignment of work each party is to perform. d. Estimated costs. e. Proportion of costs the parties are to bear. f. Method of sharing. See section 62 for detailed direction of the preceding elements. 3. Section 3 - Road Construction Plans. Usually, the parties are aware of the other's construction plans and needs from the information exchange at the annual meeting in section 12 of the agreement. To avoid delays in road construction, it is essential for the parties at the field level to maintain close working relationships and frequent contacts. A party considering the construction of a road within the agreement area must give the other party written notice and a map showing the approximate location of the proposed road. Within 30 days of receipt of the notice, the other party will inform the initiating party whether or not that party is interested in joint financing of the construction. The time limitation is to prevent unnecessary or unwarranted delays by either party. Consequently, by mutual agreement this time period may be extended. When the parties agree to finance the proposed road jointly, the initiating party takes the lead in reaching final agreement on the elements of a supplement. Detailed instructions for transportation system planning are in FSM 7700. Following are considerations peculiar to the cooperative road program: a. Location. The objective of the cooperative program is to develop a road system that serves the needs of all parties. Route selection and road specifications must aim toward that objective. Factors to consider include ownership patterns, topography, location of timber stands and other resources, probable directions of haul, recreation access needs, watershed protection, erosion- prevention requirements, and others. Close coordination between the parties is essential in all phases of route selection and determination of the road needed. Agree on the general location and specifications of a project before making the survey. This will avoid costly relocation and resurvey work. b. Plans and Specifications. Constructing a road adequate to serve the joint needs should result in a lower cost and a better road for the cooperators than if they had proceeded independently. Consequently, there should be agreement if plans and specifications recognize all anticipated use. Agreement may be facilitated by segmenting the road and agreeing on the plans and specifications for each segment. The Forest Service may agree to share in the development costs only when the standards of the facility will adequately and safely serve the total needs of the parties. The supplement for an existing substandard road must provide for reconstruction to the standard needed to serve the total needs of both parties. When agreement cannot be reached on location, plans, specifications, and cost estimates and further delay would be detrimental to planned programs and uses, either party may construct the road on its own land (sec. 66.8). However, when the parties continue to disagree on road location and standards, the Forest Service shall consider alternative solutions to its access needs. c. Cost Estimate. The method of determining costs of new construction or reconstruction for the purpose of cost sharing must be clear and have the approval of the Regional Engineer and Regional Fiscal Agent. In general, use the same method to determine each party's construction costs. See section 64.3 for additional direction on cost estimates. 4. Section 4 - Limitation on Cost Sharing for Roads. The agreement is to share the total cost of the road that is necessary to serve the needs of both parties in proportion to their anticipated use. This section is not intended to limit cost sharing to the cost of a lower standard road than the parties agree to build. 5. Section 5 - Basis for Cost Sharing. This section of the agreement states the principles for allocating the anticipated use of a cost share road between the parties. 6. Section 6 - Methods of Sharing Costs. a. Cooperator. A cooperator may meet its agreed share of costs by: (1) Constructing, reconstructing, or improving a cost share road. (2) Depositing with the Forest Service its share of the cost in advance of construction, reconstruction, or improvements. (3) Granting a reciprocal right of similar value to the road use sought. (4) Making arrangements with the Government to do more than its agreed share of constructing, reconstructing, or improving another cost share road. (5) Making payment as its timber is hauled over the road at a rate within the limits and to the total amount specified in the supplement. (6) Any combination of items in paragraphs (1) through (5). b. Government. The Government may meet its agreed share of costs by: (1) Constructing, reconstructing, or improving cost share roads or road segments with appropriated funds or as a requirement of purchasers of products from lands of the United States. (2) Making payments as construction or reconstruction by the cooperator is completed and accepted. (3) Purchasing its share of an existing road owned by the cooperator with appropriated funds. (4) Charging haulers of products from National Forest System lands and making payment to the cooperator. (5) Any combination of items in paragraphs (1) through (4). 7. Section 7 - Right-of-Way Conveyances. In most cases, easements for cost share roads are exchanged concurrently with, or soon after, execution of the supplement. Section 63 of this Handbook provides instructions on modifications and additions for easements and permits associated with the agreement. This section of the agreement further provides that either party shall issue a permit in lieu of an easement when requested. On an existing road, a road use permit may be requested in lieu of an easement when the parties have met the requirements of sharing and paying in Sections 4, 5 and 6 of the agreement. If the road use permit is included in a supplement to the agreement, the methods of payment specified in Section 6 of the agreement may be used. If the road use permit is not included in a supplement to the agreement, use the methods of payment specified in FSM 7730. Payment made in the permit will be credited in future cost sharing. Do not use permits to delay sharing in a project. When the parties decide not to cost share a proposed road within the agreement area, Section 13 of the agreement specifies the documents to be granted. Attach the right-of-way instrument forms to the agreement as Exhibits C through I (sec. 61.3). 8. Section 8 - Road Construction, Inspection, and Acceptance. Completion and acceptance of road construction, reconstruction, or improvement within a reasonable time or by the time agreed to is essential to accomplishing cooperative objectives. A party's failure to inform the other on construction progress, or the other party's failure to inspect and respond does not meet the objectives. Consequently, each party needs to adhere to the requirements under this section. This section provides for the disposal of right-of-way timber in accordance with the terms of the easements or permits unless otherwise agreed. When executing an agreement, the parties usually do not know how they desire to dispose of their right-of- way timber on individual projects within the agreement area. Without specific requirements, this space is usually left blank in the agreement. If a party desires to specify a method of timber disposal different from that specified in the easements, enter the disposal method in the blank space. The easements specify cutting and decking the merchantable timber for disposal by the timber owner, unless otherwise agreed. The disposal of the right-of-way timber is best handled and documented in the road plans and specifications, fact sheet, and supplement. This, however, does not preclude disposal by means other than cutting and decking along the right-of-way. Any agreement on timber disposal must be in writing. The constructing party receives credit for its excess costs when the other party accepts the construction in writing. A refusal to accept any construction project may be made only for failure to comply with the stated plans and specifications. Prepare such plans and specifications in sufficient detail to ensure agreement between the parties as to their meaning. 9. Section 9 - Maintenance. This section provides for road maintenance on jointly financed roads in accordance with easements or permits granted and a road maintenance agreement separately entered into by the parties. A road maintenance agreement may cover multiple cost share agreements and administrative units. A written annual maintenance plan is a requirement. See FSM 7732.24 and FSH 7709.58 for direction concerning maintenance of cooperative roads. 10. Section 10 - Additional Capital Expenditures. This section provides for restoration of jointly financed roads that have been exhausted, heavily damaged, or destroyed. It also provides for reconstruction to accommodate traffic more safely and efficiently. The parties need to reach agreement and document in a supplement the work each is to perform and costs to be shared. Neither party shall perform additional capital expenditures on any cooperative road system without first seeking assistance from the cooperating party. Any party that performs work under this section without the other's concurrence can expect to bear the full cost. In an emergency, such as a complete destruction of a road section, the constructing party should perform the minimum work necessary to open the road and prevent further damage until execution of a supplement. The constructing party should make every effort to inform the other party and reach agreement on the extent of the emergency work. Restoration occurs most frequently as a result of major damage from floods or other extraordinary natural causes. Each party is responsible for promptly reaching agreement to restore a road to the standard existing prior to the damage and must share the cost of the restoration. Accumulated deferred maintenance is not restoration work. Restoration required within 5 years of the completion and acceptance date of construction or reconstruction of a road shall be shared using the same percentages in the supplement under which the road segment was shared. If the road was an existing road found to be adequate for the needs of both parties and no additional work was necessary in the supplement, the 5-year period begins with the date of execution of the supplement. Parties shall share the cost of restoration work required after 5 years using the principles stated in Section 5 (sec. 61.2, para. 5). Reconstruction is work performed to increase road capacity, reduce user transportation costs, eliminate progressive environmental damage, or improve traffic safety. A proposal to reconstruct a road must be based on a thorough analysis of future transportation facility needs for commodity transport and other purposes, traffic management alternatives, and investment economics. In evaluating the expected investment return to the parties from reconstruction of a road, consider the timber transport benefits accruing to the parties from saving in maintenance and hauling costs as well as any saving they may realize from an extended operating season or use of more efficient log-carrying vehicles. To determine cost shares in reconstruction, apply the principles stated in section 5. Where the parties agree that there has been no substantial change in the tributary area of the road from that used in determining the shares in the original construction, use the original cost share percentages. Neither party may unilaterally reconstruct a road in such a way as to diminish the other party's interest in the road. The Forest Service shall not proceed unilaterally with reconstruction of a jointly owned road until it has made every effort to negotiate a supplement covering the work. The Regional Forester may approve exceptions after thorough review of the economic analysis, the negotiations with the cooperator, and any special circumstances affecting the decision. The Regional Forester shall send a copy of each approval to the Washington Office, Director of Lands. 11. Section 11 - Annual Accounting. When executing a supplement, base the relative excess costs on past or planned construction or reconstruction work. Maintain the record of the relative status of the excess cost balances within an agreement area on a balance sheet. Excess costs are those dollar amounts committed or expended by one party over and above that party's calculated share. Excess costs may be: a. Excess Cost on a Commitment Basis. This is the amount of excess cost set out in the supplement and is equal to the sum of the "earned" and "unearned" excess costs for a particular road segment. b. Unearned Excess Cost. When a shared road is planned but the work has not yet been accepted by all the sharing parties, the excess cost is an "unearned excess cost". c. Earned Excess Cost. When a shared road or road segment has been constructed and/or reconstructed and the parties have accepted the work, the excess cost becomes an "earned excess cost". Enter on the balance sheet the excess cost from each new supplement and actions that directly affect the status of the agreement such as cash payments and transfers between agreement areas. The balance sheet shows the contractual status of the cooperative agreement. In addition to the balance sheet, it is suggested that a uniform accounting format be used by both the Forest and cooperator to track the excess cost balances accrued in the supplements. The format adopted should be easily maintained and provide administrative and financial information about each of the road segments which have been jointly financed. As a minimum the unearned excess cost and the earned excess cost must be included in the annual accounting. The parties shall render an accounting on both the commitment and earned basis as of each December 31. The parties must promptly reconcile any differences in their records. The Regional Forester shall audit the financial accounting records on a periodic schedule, not to exceed 5 years. The credits earned by the parties should remain in reasonable balance considering the stage and pace of development, the size of the share, reasonable completion time of the work agreed to, and the opportunities for offsetting work the parties are to perform. Occasionally, one party may lag behind in credits earned. In such cases, consider making cash payments for a share of the existing road system and adjusting constructing parties in current and planned supplements. Neither party should remain in arrears for extended periods of time without making specific arrangements for meeting its share of the cost. See FSM 5467.6 for detailed direction on the management of excess cost balances. 12. Section 12 - Annual Meeting. The operation of an active cooperative program is dynamic. This section is not intended to pre-empt the need for on-going coordination between the parties. It does provide that the parties meet annually to exchange long- and short-term activity plans and develop maintenance arrangements for the coming year. Usually, the parties have already discussed road construction or reconstruction for the coming season by this time or are in the process of reaching agreement on these issues. Some of the projections shared by the cooperator may be sensitive to their operations. The Government shall consider such projections for the purpose of planning under the cooperative agreement. When requested by the cooperator, keep the information confidential as a trade secret to the extent authorized by law. 13. Section 13 - Roads Not Jointly Financed. These roads are defined as either permanent or temporary roads on which there are no plans for joint financing and joint maintenance. Such roads are necessary for commercial hauling by the constructing party only. Right-of-way grants for construction of such roads provide for unrestricted use of the road by the grantor for purposes of protection and administration and for removal of right-of-way timber. These grants also provide for the grantor to use the road for commercial hauling after bearing a proportionate share of the cost (36 CFR 212.11). Act promptly on right-of-way requests for non-cost share roads. Deny such requests only for justifiable reasons, such as a severe conflict with existing or planned facilities or a design that is inadequate to prevent undue damage to the land. The parties shall endeavor to agree upon a mutually acceptable alternate route or specification to avoid denial of a right-of-way. See section 63 for direction on right-of-way instruments to issue for non-cost share roads. 14. Section 14 - No Rights of Use Without Cost Sharing. This section provides that either party may acquire rights of use in an existing road or a road to be constructed within the agreement area in accordance with the provisions of Sections 5 and 6. When the parties agree to share, complete a supplement and exchange easements prior to use or construction. When one of the parties declines to share costs of a road planned for construction, an easement or permit for a non-cost share road may be granted to the constructing party. However, the parties shall not use the provisions of this section to postpone cost sharing until later. If later there is a need for commercial use of the road by the non-constructing party, the party may negotiate for a cost share easement or road use permit. This section further provides that neither party shall use any road within the agreement area until it pays or makes satisfactory arrangements to provide for its share of the road in accordance with Section 6 (sec. 61.2, para. 6) of the agreement. There is no intent under this section to prohibit administrative travel of either party. 15. Section 15 - Rights of Entry Upon Land of Other Party. This section provides that the initiating party may enter lands of the other party for any purpose deemed necessary in connection with the agreement. The party desiring to enter upon the lands of the other must give notice in writing and briefly state the purpose and extent of the use. A primary reason for occupancy in advance of the grant of easements or permits is to locate and survey a proposed road. Notice of such entry serves to initiate an exchange of advance planning information and keeps the landowner informed of the location of work crews or other activities upon its land. 16. Section 16 - Change in Ownership. This section provides that the parties agree, document, and make provisions to satisfy all outstanding obligations associated with the cost share program upon change in ownership of the parties' lands. Outstanding balances include those owed for construction, use, maintenance, deferred maintenance, or any other funds and work included under the Road Right-of-Way Construction and Use Agreement. Without satisfactory arrangements, billing must be made for balances. Changes in ownership can occur with changes in cooperator business structure, land exchange, or sale. A party anticipating a land ownership change is encouraged to open discussions with the cooperating party as early as possible to minimize disruptions and provide for future working relationships. With major changes in ownership, the parties should evaluate the need for a future cooperative relationship. Use the joint development criteria in FSM 5467.2 to make the assessment. Easements and other rights-of-way documents executed by the parties remain in effect after termination of a Road Right-of-Way Construction and Use Agreement. Management of the estate rights and associated roads continues based on the terms in easements. If work remains to be accomplished under a supplement at the time of a change in ownership, the parties should make appropriate arrangements for accomplishment of the work in the future, or an amendment to the supplement may be in order. When land ownership changes, advise new landowners of the status of the road, their rights and obligations of use, and the limitations of the Forest Service relative to maintenance. Where the change in ownership results in a subdivision, encourage the residents to form a local road management organization or to seek out a public road agency to take jurisdiction of the road. 17. Section 17 - Termination. The agreement provides for termination at the option of either party. The intent is to provide for an orderly rather than abrupt termination that could occur in absence of such a clause. This clause also emphasizes that termination does not affect any rights-of-way granted by either party or any unfulfilled obligation of the parties. 18. Section 18 - Federal Requirements. Agreements must contain the standard clause prohibiting resident commissioners or members of, or delegates to, Congress from participating in the agreement or any benefits that arise therefrom, unless made with a corporation for its general benefit. The standard nondiscrimination clause does not apply to agreements of this nature. However, any contracts or understandings entered into for work to be performed pursuant to its terms must contain the nondiscrimination clause or any other applicable requirement of Federal law, executive order, or regulation. This section further provides that no present or future administrative rules or regulations shall reduce the rights of the cooperator under the agreement. 19. Section 19 - Notices and Payments. This section designates where the cooperating parties are to deliver notices and payments. The address may be changed with written notice to the other party. The person authorized to execute agreements shall give such notice of change. 61.3 - Exhibits. Attach the following exhibits to the agreement. 1. Exhibit A - Map of the Agreement Area (sec. 61.1). 2. Exhibit B - Supplement No. _______ to Road Right-of-Way Construction and Use Agreement (sec. 62). 3. Exhibit C - Easement, From the Cooperator to the United States (sec. 63.2). 4. Exhibit D - Easement, From the United States to the Cooperator (sec. 63.1 and FSH 2709.12, sec. 31.2). 5. Exhibit E - Easement, From the Cooperator to the United States for Non-Cost Share Roads in an Agreement Area (sec. 63.4). 6. Exhibit F - Easement, From the United States to the Cooperator for Non-Cost Share Roads in an Agreement Area (sec. 63.3 and FSH 2709.12, sec. 32.2). 7. Exhibit G - Permit, From the Cooperator to the United States (sec. 63.6). 8. Exhibit H - Permit, From the United States to the Cooperator (sec. 63.5 and FSH 2709.12, sec. 41.24).