Pre-Existing Third-Party Rights on Acquired Public Lands
January 4, 2018
In Reply Refer to:
2100/2200 (P)
(CA-932)
EMS TRANSMISSION: 01/12/2018
Instruction Memorandum No. CA-2018-005
Expires: 09/30/2023
To: District and Field Managers
From: State Director
Subject: Pre-Existing Third-Party Rights on Acquired Public Lands
Program Area: Lands and Realty – Acquisitions under Sections 205 and 206 of the Federal Land Policy and Management Act (FLPMA) of 1976, as amended.
Purpose: The purpose of this instruction memorandum is to provide additional guidance and clarification regarding certain third-party easement rights on lands acquired by the Bureau of Land Management (BLM) California.
Policy/Action: The BLM California policy is to provide a consistent approach and acknowledge valid existing rights of third-party easement holders on acquired lands.
Sections 205 and 206 of the FLPMA, as amended, authorize the United States through the BLM to acquire by purchase, exchange, donation, or eminent domain, lands or interests therein. Pursuant to this authority, the BLM may acquire lands previously encumbered with easements that authorize the holders to take actions, such as maintain, construct and use roads, erect utility lines, or construct and maintain fences. If the BLM acquires land subject to an existing easement, the BLM does not have the authority to require the holder to obtain BLM approval for activities in accordance with the rights granted by their existing easements. The BLM must manage the acquired land in accordance with FLPMA and other Federal laws, but cannot interfere with the rights of the pre-existing easement holder.
If a third-party easement holder is performing construction, maintenance or operation within the geographic and substantive scope of the easement, the BLM cannot require the holder or its contractor to obtain BLM permits or fieldwork authorizations. However, the easement holder must comply with Federal laws such as the Archaeological Resources Protection Act (ARPA) and the Endangered Species Act (ESA). An easement holder’s violation of laws or regulations could result in penalties or other legal action.
A BLM permit or approval is required when the easement holder’s activity is outside the geographic or substantive scope of rights authorized in the easement. For that reason, it is important to understand the scope of the rights granted in the easement instrument and make a case-by-case determination regarding the easement holder’s rights and responsibilities, as well as the BLM’s authority.
Timeframe: This policy is effective immediately.
Budget Impact: There will be a positive impact to budget by reducing unnecessary authorization processing workload for staff.
Background: The BLM needs to be consistent when providing guidance to the public. Some field offices have requested written guidance on whether to require pre-existing third-party easement holders (easement created prior to BLM’s acquisition of the land) to complete cultural or biological surveys before any surface disturbing activities take place within the easement area.
An easement is an interest in land owned by another that entitles its holder to a specific limited use or enjoyment. If the BLM acquires lands subject to an existing easement, it is important to know what rights that easement grants and the geographic area covered by the easement. Most easements are for ingress and egress or for the placement of utilities, such as telephone lines, power lines, or pipelines. Some easements may grant specific rights where others may be vague or unclear. When easement widths, location, or rights are unclear, seek advice from the State Office and regional solicitor. Those terms define the geographic and substantive scope of the easement. The BLM cannot preclude or condition the holder’s exercise of rights granted under the easement.
Common Issues
As an example, the BLM sometimes acquires land that includes roads used by the easement holder to access a power line or pipeline easements, yet the easement instrument may be silent about any roads. To the extent that the road is within the power line or pipeline easement and the easement holder uses the road to manage or provide access to support the use authorized by the easement, any maintenance or modification of the road is likely not subject to the BLM’s review and approval, unless the easement instrument otherwise stipulates. However, surface disturbing activity outside of the geographic scope of the easement will require a BLM right-of-way grant or temporary use permit, along with associated cultural or biological surveys/permits, if applicable. Likewise, a major modification to the holder’s use of the easement may also trigger the need for a BLM authorization.
Generally, an easement holder does not have the right to authorize or preclude other uses within their easement, unless the easement specifies otherwise. If the resource management plan allows for new construction by other parties, the BLM can authorize a FLPMA right-of-way within the easement, as long as it does not affect the existing easement holder’s rights. For example, if a company approached a county roads department to request authorization to put in a fiber optic line along a county road easement, the county may not be able to authorize the fiber optic line, depending on the scope of the easement. In that case, the BLM, as manager of the lands, could authorize such activity under FLPMA, as long as it did not interfere with the pre-existing easement.
An easement holder should be encouraged to coordinate maintenance activities with the BLM as the Federal land manager, but the holder is not required to obtain BLM authorization prior to conducting activities allowed by the easement. Coordination ensures that the easement holder does not inadvertently violate other Federal laws, such as ARPA or ESA, in performing activities authorized by the easement. The BLM may notify the easement holder of the BLM’s mission, and ask for cooperation and assistance to help manage and protect the resources by preparing a cooperative agreement between the parties within the easement area. The BLM may also offer to acquire the easement through purchase or donation if the easement holder determines that it no longer requires the easement.
Review and Recordation of Existing Third-Party Easements
Before expending money on land acquisitions, the BLM must determine whether it can manage the lands subject to existing easements, so it is important for the planning and realty staff to review existing easements to determine if the BLM can effectively manage the land and its resources.
When the BLM acquires lands subject to third-party easements, the realty specialist should set up a case file and serialize it in the Legacy Rehost 2000, following the data standards for Authorizations Recognized for Acquired/Reconveyed Lands. The realty specialist will serialize and set up a case file for each easement. The case type in LR2000 is the type of facility located on the reconveyed lands (ending in 11, i.e. 281011 - Road reconveyed). For clarification, when using a case type ending with “11” the lands are reconveyed, not the easement. The case file shall include a copy of the document creating the easement, a map, and the recorded deed, title policy and final title opinion from the land acquisition/reconveyance.
Manual/ Handbook Sections Affected: This IM does not change manuals or handbooks. This does not replace or cancel previous IMs.
Coordination: Coordination with the Office of the Regional Solicitor, Pacific Southwest Region; California State Office, Division of Natural Resources.
For further information, contact Sandra McGinnis, Chief, Branch of Lands, Planning, and Recreation at (916) 978-4427, or Janet Eubanks, Realty Specialist, at (951) 697-5237.
Signed by: Authenticated by:
Jerome E. Perez Larry Weitzel
State Director GIS/Applications Mgmt Branch, CA-946