Legal Access for Timber-Related Activities
In Reply Refer To:
2100/5400 (933) P
October 20, 2017
EMS TRANSMISSION: 10/24/2017
Instruction Memorandum No. ID-2018-001
Expires: 09/30/2021
To: Idaho Management Team
Attention: Lands and Realty and Forestry
From: State Director
Subject: Legal Access for Timber-Related Activities
Program Area: Lands and Realty, and Forestry
Purpose: This Instruction Memorandum (IM) will assist managers in identifying options, timeframes, and risks associated with acquiring legal access over private land for timber-related activities and vegetation treatments.
Policy/Action: The Bureau of Land Management (BLM) Idaho Field Offices will use one of the following-described processes for acquiring access across private land for project purposes. Each of the options is explained along with their associated benefits and risks.
Exclusive or Non-Exclusive Road Access Easement (Easement) – Easements are the preferred option for providing legal access to BLM-managed lands and will be used a majority of the time. Managers should assume long processing timeframes for acquiring access easements when developing project timelines. The easement acquisition process is the same for forestry and non-forestry projects (stewardship, vegetation treatment, wildlife, fuels reduction, etc.). Easements greatly reduce the risks associated with losing legal access in the future due to a high level of due diligence conducted by the BLM combined with the review and approval by the Department of Justice (DOJ). Monetary consideration is offered to the land owner as compensation for the easement, however the land owner may choose to donate the easement or the Authorized Officer (AO) may negotiate an alternative form of consideration that is equal to the value of the easement (i.e. provide the land owner equal value in reciprocal right-of-way, fencing materials, a cattle guard, culvert(s), etc.) Easements are recorded in the local County Recorder’s office and the right of access runs with the title to the land. Acceptance of the easement resides solely with the local DOJ Attorney assigned to review the easement package. Easements are required for perpetual legal access and are strongly encouraged for temporary legal access where it appears the parcel ownership may change during the life of the project. Easements are also required when the BLM will be investing substantial capital improvements as part of the project.
Process: Field Offices are responsible for all required due diligence with a high level of cooperation and coordination from the State Office Land Acquisition Lead. See Attachment 1 for sample easement project checklist.
Time Factor: HIGH due to extensive processing requirements. Waiting until the project’s National Environmental Policy Act (NEPA) analysis is approved before processing the easement will most often delay the forestry contracting process. Processing the easement package, including NEPA, separate from the project with a built-in flexible easement effective date will help to insure the easement is authorized before the project start date.
Risk Factor: LOW due to the high level of due diligence and because the easement is a real property right that is transferred with the title to the land.
Negotiated Agreement – The BLM’s legal access across private land may be obtained through written permission from the land owner of record. The use of a Negotiated Agreement is ideal for implementing short-term forestry and vegetation treatment projects, or where the risk of the property changing ownership is low. Legal access for a successful contract bidder would be pre-negotiated through this process by the BLM. The BLM may negotiate the terms and conditions of a Road Use Agreement (Agreement) with a land owner, which would then be disclosed during the contract advertisement and made part of the (forestry) contract (43 CFR 5420.0-6).
Process: Negotiated Agreements are a two-step process. The AO first enters into a Memorandum of Understanding (MOU) with the land owner, which grants access to the BLM and its assigns over private land for administrative purposes including data collecting; resource management; and management of a specific project such as forestry, stewardship, vegetation treatment, fuels reduction, etc. The BLM then negotiates the terms and conditions of a Negotiated Road Use Agreement which would be entered into by the land owner and the contract purchaser. See Attachment 2 for the required minimum due diligence checklist; Attachment 3 for a sample Access Agreement MOU; and Attachment 4 for a sample Negotiated Road Use Agreement.
Time Factor: LOW due to limited due diligence with no review and approval from DOJ.
Risk Factor: MEDIUM to HIGH due to limited due diligence and the fact that access may be terminated by a new land owner if the property is sold during the term of the project.
Contractor Negotiated – On limited occasions, the BLM may choose to advertise a contract, and stipulate that the successful bidder shall acquire their own legal access to the project area. The successful bidder would be required to contact and negotiate the terms and conditions directly with the land owner and independently bear all associated costs. Contract terms, liabilities, timeframes, etc. should be identical to those items described in the advertisement. The BLM would still be required to have legal access through the private land, which would be accomplished using an MOU as described above (see Negotiated Agreement).
Process: Contractor-negotiated access is completed through clear and explicit disclosure in the advertisement for a contract. The AO would be responsible for including specific language in the advertisement, which would place potential bidders on notice of the unique requirement to gain their own legal access and potentially allow them to make contact with a land owner prior to placing a bid. Additionally, specific language would be required for the subsequent contract. See Attachment 5 for sample advertisement and contract language.
Time Factor: LOW due to limited due diligence with no review and approval from DOJ and limited negotiations with the land owner.
Risk Factor: HIGH due to limited due diligence on behalf of the BLM. Risk may be reduced substantially through strong prior working relationships among private parties and potential bidders within a reasonable area of the advertised project. The risk may be high if a contractor is unable to negotiate acceptable terms and conditions with a land owner and the right of access may be terminated by a new land owner if the property is sold during the term of the project.
Timeframe: The policy in the IM is effective immediately.
Background: Acquiring legal access over Federal and Non-Federal land is a vital part of the BLM’s forestry and vegetation treatment program. Over the past several years there has been a high turnover of Management, Realty and Forestry Specialists in Field Offices that have a large volume of forestry-related and vegetation treatment projects. Lands and Realty staff have often been brought into the project after the NEPA has been completed and the project is ready for contract, which is too late to provide legal access in a timeframe that meets the needs of the project manager. Managers have requested information which identifies the options available to them for gaining legal access and the associated benefits and risks with each option.
Manual/Handbook Sections Affected: None
Coordination: Authorized Officers for timber-related vegetation treatment projects, Idaho State Office Land Acquisition Staff and Forester, and Field and District Office Lands Staff and Foresters.
Contact: Jeff Cartwright, Realty Specialist, at (208) 373-3885 or jcartwright@blm.gov; Joe Admaski, Supervisory NRS/Forester, at (208) 373-4022 or jadamski@blm.gov.
Boise District with Union: Management is reminded to notify and satisfy any bargaining requirements prior to implementation.
Signed by:
Timothy M. Murphy
Authenticated by:
Terrian Wells
Program Analyst
5 Attachments:
1 - Easement Project Checklist (2 pp)
2 - Required Minimum Due Diligence Checklist (1 p)
3 - Access Agreement Memorandum of Understanding (4 pp)
4 - Negotiated Road Use Agreement (5 pp)
5 - Advertisement and Contract Language (2 pp)