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CASE NO. 20-12046

IN THE UNITED STATES COURT OF APPEALS


FOR THE ELEVENTH CIRCUIT

FLORIDA DEFENDERS OF THE ENVIRONMENT,


BRUCE KASTER, AND JOSEPH LITTLE,
Plaintiffs – Appellants

v.

UNITED STATES FOREST SERVICE,


Federal Defendant – Appellee

On appeal from the


United States District Court, Middle District of Florida
Case No.: 3:17-cv-01128-HES-JBT

APPELLANTS’ BRIEF

Pamela Jo Hatley Jane West


Florida Bar No. 658545 Florida Bar No. 159417
PAMELA JO HATLEY P.A. JANE WEST LAW P.L.
P. O. Box 47477 24 Cathedral Place, Ste. 504
Tampa, FL 33646-0113 St. Augustine, FL 32084
813-727-0672 904-471-0505
pamela@landuse-appeals.com jane@janewestlaw.com

Lead Counsel for Appellants Co-Counsel for Appellants


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Florida Defenders of the Environment et al. v. U.S. Forest Service

Case No. 20-12046

CERTIFICATE OF INTERESTED PERSONS


AND CORPORATE DISCLOSURE STATEMENT

Pursuant to Fed. R. App. P. 26.1 and 11th Cir. R. 26.1-1, Appellants Florida

Defenders of the Environment, Bruce Kaster, and Joseph Little disclose the

following trial judges, attorneys, persons, firms, partnerships, corporations or

business entities that have an interest in the appeal, including subsidiaries, affiliates,

and parent corporation including any publicly held corporation that owns 10% or

more of the party’s stock:

1. Carpenter, Hayley – Counsel for Appellee

2. Florida Defenders of the Environment, Inc., a Florida Not-For-Profit

Corporation – Appellant

3. Grant, Eric – Deputy Assistant Attorney General, U.S. Department of

Justice, Environment & Natural Resources Division – Counsel for Appellee

4. Hatley, Pamela Jo – Counsel for Appellants

5. Jane West Law P.L. – Counsel for Appellants

6. Kaster, Bruce – Appellant

7. Little, Joseph – Appellant

8. Pamela Jo Hatley P.A. – Counsel for Appellants

9. Schlesinger, Harvey E. – District Court Judge


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Florida Defenders of the Environment et al. v. U.S. Forest Service

Case No. 20-12046

10.Toth, Brian C. – Counsel for Appellee

11.Toomey, Joel B. – District Court Magistrate Judge

12.U.S. Department of Justice, Environment & Natural Resources Division –

Counsel for Appellee

13.United States Forest Service – Appellee

14.West, Jane – Counsel for Appellants

15.Williams, Jean E., Deputy Assistant Attorney General, U.S. Department of

Justice, Environment and Natural Resources Division – Counsel for

Appellee

Pursuant to Fed. R. App. P. 26.1 and 11th Cir. R. 26.1-2(a), Appellant Florida

Defenders of the Environment, Inc. certifies that it has no parent corporations and

has issued no stock, and no publicly traded company or corporation has an interest

in the outcome of the case or appeal.

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STATEMENT REGARDING ORAL ARGUMENT

Appellants Florida Defenders of the Environment, Bruce Kaster, and Joseph

Little request oral argument in this matter. Oral argument will assist the Court in

determining the important issues presented regarding subject matter jurisdiction

within the specific context of this case, including assisting the Court in

understanding the factual and historical background. Oral argument will also assist

the court in assessing the record, including the administrative record submitted by

the United States Forest Service.

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TABLE OF CONTENTS

Certificate of Interested Persons and Corporate Disclosure Statement .................C-1

Statement Regarding Oral Argument ........................................................................ i

Table of Contents ...................................................................................................... ii

Table of Authorities ................................................................................................. iv

Statement of Subject Matter and Appellate Jurisdiction ........................................ vii

Statement of the Issues...............................................................................................1

Statement of the Case.................................................................................................2

I. Statement of the Facts ......................................................................................3

II. Course of the Proceedings ................................................................................8

III. The Trial Court Dismissed the Complaint For Lack of Jurisdiction
With Prejudice. .............................................................................................10

Standard of Review ..................................................................................................11

Summary of the Argument.......................................................................................11

Argument..................................................................................................................13

I. USFS disregarded clear statutory direction by allowing FDEP to occupy


and use national forest lands without a permit. USFS’s action was
subject to judicial review under the APA as arbitrary, capricious, an
abuse of discretion, and otherwise not in accordance with law. ...................13

A. There is no statutory provision that precludes judicial review of


USFS’s action allowing FDEP to occupy and use national forest
lands without a permit. ...............................................................................14

B. USFS’s action allowing FDEP to occupy and use national forest


lands without a permit is not within the purview of USFS’s
prosecutorial discretion or committed to USFS’s discretion by law
and is subject to judicial review. ................................................................16
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II. Any presumption that USFS’s action was not subject to judicial review
because it involved an agency enforcement decision was rebutted
because the statutory scheme here provided clear direction to the
agency. ...........................................................................................................22

III. If the district court properly dismissed the Complaint for lack of subject
matter jurisdiction, it should not have dismissed with prejudice. .................26

Conclusion ...............................................................................................................27

Certificate of Compliance ........................................................................................29

Certificate of Service ...............................................................................................30

Addendum

5 U.S.C. 701 - 706.................................................................................................A-1

43 U.S.C. 1761 - 1767...........................................................................................A-2

36 C.F.R. 251.50 - 251.65.....................................................................................A-3

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TABLE OF AUTHORITIES

Cases

* Abbott Labs. v. Gardner, 387 U.S. 136 (1967) .......................................................14

* Boudloche v. Conoco Oil Corporation,

615 F.2d 687 (5th Cir. 1980)..........................................................................26

Broward Gardens Tenants Ass’n v. U.S. E.P.A.,

311 F. 3d 1066 (11th Cir. 2002) ....................................................................11

Califano v. Sanders,

430 U.S. 99 (1977).........................................................................................14

Conservancy of Sw. Florida v. U.S. Fish & Wildlife Serv.,

677 F.3d 1073 (11th Cir. 2012) .....................................................................21

Crotwell v. Hockman-Lewis Ltd.,

734 F. 2d 767 (11th Cir. 1984) ............................................................... 26, 27

* Dep’t of Commerce v. N.Y.,

139 S. Ct. 2551 (2019) ...................................................................................23

Dunlop v. Bachowski,

421 U.S. 560 (1975)................................................................................ 14, 15

* Heckler v. Chaney,

470 U.S. 82 (1985) ...................................................................... 17, 19, 21, 24

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* Mach Mining, LLC v. Equal Emp’t Opportunity Comm’n,

135 S. Ct. 1645 (2015) ................................................................ 14, 15, 16, 19

* Norton v. Southern Utah Wilderness Alliance,

542 U.S. 55 (2004) .........................................................................................24

* Stalley v. Orlando Regional Healthcare System, Inc.,

524 F. 3d 1229 (11th Cir. 2008).............................................................. 26, 27

* Weyerhaeuser Co. v. U. S. Fish & Wildlife Service,

139 S. Ct. 361 (2018) ........................................................................ 14, 16, 24

Statutes

28 U.S.C. § 1291 ..................................................................................................... vii

28 U.S.C. §§ 2201-2202 ......................................................................................... vii

43 U.S.C. § 1761(a) .................................................................................................16

* 43 U.S.C. § 1761(b) .................................................................................................17

* 43 U.S.C. § 1764(b) .................................................................................................18

* 43 U.S.C. § 1764(j)..................................................................................... 17, 20, 21

* 43 U.S.C. § 1770(a) .................................................................................................17

* 5 U.S.C. § 701(a)(1) ................................................................................................14

* 5 U.S.C. § 701(a)(2) ................................................................................... 14, 15, 23

5 U.S.C. § 702 ................................................................................................... vii, 14

* 5 U.S.C. § 706 (2) ....................................................................................................14

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* 5 U.S.C. § 706(1) .................................................................... 2, 8, 12, 14, 23, 24, 26

* 5 U.S.C. § 706(2)(A) .................................................................................... 2, 12, 22

Administrative Procedures Act (APA), 5 U.S.C. §§ 701-706 ............................ vii, 2

APA, 5 U.S.C. § 706 ................................................................................................14

Federal Lands Policy and Management Act, 43 U.S.C.§ 1701 et seq. ........... vii, 3, 8

Other Authorities

* 36 C.F.R. § 251.50(a) ....................................................................................... 17, 25

36 C.F.R. § 251.50, et seq. .........................................................................................8

* 36 C.F.R. § 251.54(b) ..............................................................................................18

* 36 C.F.R. § 251.54(d)(3) .........................................................................................18

Federal Rule of Civil Procedure 12(b)(1) ................................................................11

* Federal Rule of Civil Procedure 41(b) ....................................................................26

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STATEMENT OF SUBJECT MATTER


AND APPELLATE JURISDICTION

The district court had jurisdiction to determine the Federal Lands Policy and

Management Act (FLPMA) claims under 28 U.S.C. section 1331, which provides

that “district courts shall have original jurisdiction of all civil actions arising under

the Constitution, laws, or treatises of the United States,” and under 28 U.S.C.

sections 2201-2202, which provide that United States courts “may declare the rights

and other legal relations of any interested party seeking such declaration,” and grant

“necessary or proper relief based on a declaratory judgment or decree.” In addition,

Appellants brought their claims under the Administrative Procedures Act (APA), 5

U.S.C. sections 701-706, which provides that persons who suffer legal wrong

because of agency action are entitled to judicial review. 5 U.S.C. § 702.

On Federal Defendant’s Motion to Dismiss (Doc. 25), the district court

concluded it lacked subject matter jurisdiction and dismissed the Complaint with

prejudice by order entered September 30, 2019. Doc. 37, pp. 16-17. The district court

denied Plaintiffs’ Rule 59(e) Motion to Amend or Alter the Judgment (Doc. 38) by

order entered May 7, 2020. Doc 40. Plaintiffs filed a timely Notice of Appeal on

June 2, 2020. Doc. 42. This Court has jurisdiction under 28 U.S.C. section 1291,

which provides U.S. courts of appeal with jurisdiction of appeals from final

decisions of the district courts.

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STATEMENT OF THE ISSUES

This appeal from a final dismissal of the Complaint with prejudice presents

the following three issues:

ISSUE 1. The FLPMA and United States Forest Service (USFS) regulations

require a special use authorization for the use and occupancy of national forest lands.

Since 2002 the USFS has allowed the Florida Department of Environmental

Protection (FDEP) to occupy and use national forest lands without a valid permit. Is

the USFS’s action subject to judicial review?

ISSUE 2. Agency decisions on enforcement action are presumed immune

from judicial review. This presumption may be rebutted if the statutory scheme

limits agency discretion. Here, the FLPMA and USFS’s regulations limit agency

discretion by requiring a permit for the occupancy and use of federal forest lands

and requiring USFS to apply specific criteria in granting a permit. Were USFS’s

actions allowing FDEP to occupy and use federal forest lands without a permit

immune from judicial review?

ISSUE 3. Dismissal of a complaint for lack of subject matter jurisdiction is

not a judgment on the merits and is entered without prejudice. The district court

found it lacked subject matter jurisdiction and, on that basis, dismissed the

Complaint with prejudice. Did the district court err in dismissing the Complaint with

prejudice?

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STATEMENT OF THE CASE

This appeal concerns whether a Federal agency’s clear violation of a statutory

and regulatory requirement is subject to judicial review. Specifically, this Court

must determine whether the district court had subject matter jurisdiction to consider

claims that USFS, a federal administrative agency, violated the FLPMA, 43 U.S.C.

section 1701 et seq., by allowing the State of Florida Department of Environmental

Protection (FDEP) to occupy and use federal forest lands without obtaining a special

use permit, and whether the district court erred by dismissing the Complaint with

prejudice upon finding it lacked subject matter jurisdiction.

Appellants Florida Defenders of the Environment (FDE), Bruce Kaster, and

Joseph Little filed their five-count Complaint under the APA, 5 U.S.C. section 701-

706, seeking declaratory and injunctive relief. Doc. 1. Appellants alleged USFS’s

action was arbitrary, capricious, an abuse of discretion, and otherwise not in

accordance with law under APA section 706(2)(A), and that USFS’s action

constituted agency action unlawfully withheld or unreasonably delayed under APA

section 706(1). Doc. 1, pp. 13-15, 17-22.

Although Appellants expressly challenged USFS’s failure to grant their

petition to conduct a rulemaking to enter into a new permit, the district court found

Appellants’ claims were all related to USFS’s failure to enforce the expired special

use permit, and such enforcement decisions were committed to agency discretion

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and not subject to judicial review. Doc. 37, pp. 10, 16. On this basis the district court

concluded it lacked subject matter jurisdiction and dismissed the case with prejudice.

Doc. 37, p. 16. The court denied Appellants’ motion to amend or alter the judgment.

Doc. 38, 40.

I. Statement of the Facts

FDE is a Florida non-profit environmental organization formed in 1969 with

an original focus on potential environmental threats to the Ocklawaha River caused

by the Cross Florida Barge Canal project. Doc. 1, pp. 3-4. FDE has continued to

focus efforts on restoring damage the defunct canal project caused to the Ocklawaha

River. Doc. 1, pp. 3-4. Bruce Kaster is a longtime FDE member who serves on

FDE’s Board of Trustees. Doc 1, p. 4. Joseph Little is also a longtime FDE member

who serves as FDE’s Vice President. Doc. 1, p. 4. The USFS is an agency of the

United States Department of Agriculture and is responsible for managing national

forest lands under the FLPMA, 43 U.S.C. section 1701 et seq., and implementing

regulations. Doc. 1, pp. 4-5.

The Cross Florida Barge Canal was planned to be a 107-mile shipping canal

connecting Palatka, Florida on the St. Johns River, to Yankeetown, Florida on the

Gulf of Mexico. Doc. 1, p. 5. Congress authorized construction of the canal project

in 1942 and about one-third of the canal’s structures were completed, including the

Kirkpatrick Dam and the Eureka Lock and Dam. Doc. 1, p. 5; Doc. 25, p. 2. A portion

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of the Kirkpatrick Dam and Eureka Lock and Dam occupies an area within the Ocala

National Forest. Doc. 1, p. 6; Doc. 25, p. 2. Additionally, the Kirkpatrick Dam

impounded the Ocklawaha River and created the Rodman Reservoir, which flooded

some 9,000 acres of forest, including approximately 670 acres of national forest land.

Doc. 1, pp. 5-6; Doc. 13, p. 5. On January 19, 1971 President Nixon ordered a halt

to further construction of the Cross Florida Barge Canal to prevent further

environmental damage. Doc. 1, p. 5. In 1990 Congress officially de-authorized the

Cross Florida Barge Canal, and in 1991 the U.S. Army Corps of Engineers

transferred its land interests and canal structures to the State of Florida. Doc. 1, p. 6;

A.R. Doc. 24, p. FS-001652; Doc. 25, p. 2.

Since portions of the Kirkpatrick Dam and Eureka Lock and Dam occupy

Ocala National Forest, the State of Florida had to apply for a special use permit from

USFS to occupy the national forest lands. Doc. 1, pp. 2, 6; A.R. Doc. 24, p. FS-

001652; Doc. 25, p. 2. On January 21, 1994, USFS issued a special use permit to the

Florida state agency, FDEP, but that permit expired on December 31, 1998. Doc. 1,

p. 6 and Exhibit A; A.R. Doc. 24, pp. FS-000006 – FS-000020; FS-000021; FS-

000028. USFS extended the special use permit until 2002 to aid FDEP in adhering

to an implementation schedule for partial restoration of the Ocklawaha River. Doc.

1, pp. 2, 6-7; Doc. 13, pp. 2-3; A.R. Doc. 24, pp. FS-000021, FS-000022; FS-

001130—FS-001135.

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On March 20, 2001, USFS published in the Federal Register a notice of intent

to prepare a draft environmental impact statement to authorize FDEP to continue

occupancy and use of the national forest lands to operate and maintain Kirkpatrick

Dam, Rodman Reservoir, and Eureka Lock and Dam in conjunction with

implementing partial restoration of the Ocklawaha River. Doc. 1, pp. 7-8; A.R. Doc.

24, pp. FS-001136—FS-001138. On January 18, 2002, USFS published in the

Federal Register a notice of its Record of Decision and the Final Environmental

Impact Statement. Doc. 1, p. 8, fn. 12.; A.R. Doc. 24, pp. FS-001648—FS-001661.

The decision, as USFS explained in its Record of Decision, was to allow FDEP to

continue occupancy and use of national forest lands for the Kirkpatrick Dam,

Rodman Reservoir, and Eureka Lock and Dam while the State of Florida proceeded

with restoring the Ocklawaha River as described in the Final Environmental Impact

Statement. Doc. 1, p. 8; A.R. Doc. 24, pp. FS-001652.

The Record of Decision required Florida to obtain a new special use permit

that would allow continued use and occupancy of national forest lands as long as the

state made progress on restoration of the Ocklawaha River. Doc. 1, p. 8; A.R. Doc.

24, pp. FS-001652, FS-001660. In May 2002 USFS submitted the new special use

permit to FDEP and requested the permit be signed and returned to USFS. Doc. 1,

pp. 8-9; A.R. Doc. 24, p. FS-002259. In a response letter dated July 19, 2002, FDEP

informed USFS that FDEP could not meet the restoration deadlines due to lack of

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funding, and FDEP felt obligated to return the national forest lands back to USFS

along with the unsigned special use permit so that USFS could itself pursue

restoration. A.R. Doc. 24, p. FS-002288. Because FDEP declined to sign the 2002

special use permit, the new permit was never validated. Doc. 25, p. 3. Moreover,

FDEP did not implement restoration of the Ocklawaha River. Doc. 1, pp. 2, 6.

On March 19, 2010, USFS again submitted to FDEP a new special use permit

together with a letter requesting the permit be signed and returned to USFS, and

noting that the prior special use permit expired in 2002. Doc. 1, p. 7; A.R. Doc. 24,

pp. FS-002322—FS-002331. FDEP never returned a signed copy of the permit. Doc.

25, p. 3. On February 11, 2013, USFS again submitted to FDEP, via certified mail,

a special use permit together with a letter noting the prior permit was expired, and

stating “All uses of National Forest lands must have an authorization for occupancy,

as provided in Title 36 Code of Federal Regulations, Subpart B-Special Uses,

Section 251.50(a)…” A.R. Doc. 24, pp. FS-002333—FS-002343.

USFS in its 2013 letter to FDEP also cited a provision of the previous special

use permit that required removal of improvements upon termination or expiration of

the permit and noted that water fluctuations at Rodman Reservoir were causing

unacceptable damage to national forest lands and resources. A.R. Doc. 24, pp. FS-

002333—FS-002334. USFS concluded its 2013 letter to FDEP with a warning that

if FDEP failed to sign the special use permit USFS would consider all options for

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protection of national forest resources, including removal of the dam structures. A.R.

Doc. 24, p. FS-002334. The administrative record contains no response from FDEP

to USFS’s 2013 letter. Removal of the dam structures and restoration of the

Ocklawaha River never occurred.

On December 5, 2016 Kaster and Little submitted to the Department of

Agriculture and USFS a petition for rulemaking seeking issuance of rules to enforce

the terms and conditions of the special use permit, and rules to compel coordinated

management of the Ocala National Forest consistent with the Forest Plan for

National Forests in Florida. Doc. 1, pp. 9-10; A.R. Doc. 24, pp. FS-002363—FS-

002384. On March 7, 2017, USFS denied the petition for rulemaking on the basis

that the original special use permit had not expired and was still in effect because

FDEP submitted a timely application for its reissuance, and therefore FDEP may

continue use and occupancy of the national forest under the original special use

permit. Doc. 1, p. 10; A.R. Doc. 24, p. FS-002389—FS-002390. However, the

administrative record demonstrates FDEP’s special use permit is expired and USFS

has acknowledged the permit is expired. A.R. Doc. 24, pp. FS-002322, FS-002333;

Doc. 25, p. 3. The record further shows USFS later revised its decision letter on

Appellants’ petition for rulemaking and changed the basis of its rulemaking denial.

Doc. 25, pp. 1, 3, 15.

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II. Course of the Proceedings

On October 10, 2017 FDE, Kaster, and Little filed their Complaint in the

district court. Doc. 1. Count I of the Complaint asserts USFS violated the FLPMA,

43 U.S.C. 1701, et seq., and USFS regulations, 36 C.F.R. 251.50 et seq., by allowing

FDEP to occupy national forest lands without a valid special use permit. Doc. 1, pp.

13-15. Count I further asserts USFS’s actions allowing FDEP to continue occupation

and use of national forest lands without a permit are arbitrary, capricious, and not in

accordance with applicable law. Doc. 1, p. 14. Count II of the Complaint claims

USFS’s final agency action in denying Mr. Kaster’s and Mr. Little’s petition for

rulemaking, based on USFS’s assertion that the special use is not expired and still in

effect, was arbitrary, capricious, and not in accordance with the law. Doc. 1, pp. 15-

17. USFS has since admitted FDEP’s special use permit is expired and now asserts

that issue is moot. Doc. 25, pp. 1, 3, 15; A.R. Doc. 24, pp. FS-002322, FS-002333.

Counts III and IV of the Complaint seek declaratory relief and assert that

expiration of FDEP’s special use permit triggered regulatory provisions requiring

FDEP to remove the structures and improvements occupying national forest lands.

Doc. 1, pp. 17-21. Counts III and IV allege USFS has failed to comply with the

FLPMA and USFS’s own regulations triggered by expiration of the permit, and that

USFS’s inaction constitutes agency action unlawfully withheld and unreasonably

delayed under APA, 5 U.S.C. § 706(1). Doc. 1, p. 17-21. Count V of the Complaint

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seeks a mandatory injunction compelling USFS to apply its own regulations and the

terms of the expired special use permit that allowed FDEP to occupy federal lands.

Doc. 1, pp. 22-24.

On January 19, 2018, USFS filed its answer and affirmative defenses. Doc. 8.

On March 29, 2018, USFS filed the administrative record. Doc. 10. On May 3, 2018,

USFS filed its amended answer and affirmative defenses. Doc. 13. On June 29, 2018,

USFS issued a revised decision on Kaster’s and Little’s petition for rulemaking. A.R.

Doc. 24, pp. FS-002391—FS-002392. In its revised decision, USFS did not assert

the special use permit was still in effect, but rather denied the rulemaking petition

on the basis that rulemaking would not be the appropriate mechanism to enforce an

existing special use permit because enforcement of the permit would be retroactive

rather than forward-looking and would apply existing legal requirements based on

specific facts on a case-specific basis. A.R. Doc. 24, p. FS-002391—FS-002392.

On September 4, 2018, USFS filed an amended administrative record that

included the June 29, 2018 revised rulemaking decision letter and a revised index

reflecting that addition. Doc. 24; A.R. Doc. 24, pp. FS-002391–FS-002392. On

September 4, 2018, USFS also filed its motion to dismiss in which it asserted the

claims stated in the Complaint could not proceed because (1) they seek to compel

USFS to enforce a permit, which is action committed to agency discretion; (2) they

fail to identify a discrete act USFS is required to take; (3) they are time-barred by

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the APA statute of limitations; and (4) USFS’s revised rulemaking denial letter

rendered Count II moot because the Complaint did not challenge USFS’s rulemaking

denial on the revised basis for that decision. Doc. 25, p. 1-2. In its motion to dismiss

USFS also asserted that there was no longer a dispute as to whether the special use

permit had expired. Doc. 25, pp. 15-16. FDE, Kaster, and Little filed a response to

USFS’s motion to dismiss and included a motion to strike USFS’s amended

administrative record consisting of its revised rulemaking decision letter. Doc. 28.

III. The Trial Court Dismissed the Complaint For Lack of Jurisdiction
With Prejudice.

On September 30, 2019, the district court entered an order dismissing the

Complaint for lack of subject matter jurisdiction and denying the motion to strike.

Doc. 37. The district court found USFS’s enforcement of FDEP’s 1994 special use

permit was an area traditionally committed to agency discretion. Doc. 37, p. 11. The

district court further found there were no statutory or regulatory guidelines by which

discretion was effectively withdrawn from the agency and through which a court

might exercise judicial review. Doc. 37, pp. 11-16. Despite finding that it lacked

subject matter jurisdiction, the trial court dismissed the Complaint “with prejudice.”

Doc. 37, p. 17. On October 25, 2019, FDE, Kaster, and Little filed their motion to

amend or alter the judgment, which the district court denied. Doc. 38; Doc. 40.

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STANDARD OF REVIEW

The appellate court reviews de novo the district court’s dismissal of a

complaint under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter

jurisdiction. Broward Gardens Tenants Ass’n v. U.S. E.P.A., 311 F. 3d 1066, 1072

(11th Cir. 2002).

SUMMARY OF THE ARGUMENT

USFS’s action in allowing FDEP to occupy and use national forest lands

without a permit was subject to judicial review. The district court had subject matter

jurisdiction and should not have dismissed the Complaint. In the alternative, even if

the district court lacked subject matter jurisdiction it should not have dismissed the

Complaint with prejudice.

First, there is a strong presumption that USFS’s action is subject to judicial

review, and there is no explicit statutory provision prohibiting judicial review. The

FLPMA and USFS’s own regulations require a special use authorization for the

occupancy and use of national forest lands and require an applicant to meet strict

criteria to obtain a permit. Despite this clear statutory direction, USFS has since 2002

allowed FDEP to occupy and use national forest lands with no valid permit.

Moreover, FDEP informed USFS that FDEP cannot meet the criteria necessary to

obtain a permit and USFS acknowledged FDEP is unable to meet the criteria. The

Complaint alleges USFS’s actions allowing FDEP to occupy and use national forest

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lands without a special use permit despite clear statutory direction are arbitrary,

capricious, an abuse of discretion, and not in accordance with law under the APA

section 706(2)(A). USFS’s action was subject to judicial review and the district court

had subject matter jurisdiction. The dismissal should be reversed.

Second, any presumption that USFS’s action was not subject to judicial

review because the action involved agency enforcement decisions was rebutted

because the statutory scheme at issue here provided clear direction to USFS. The

FLPMA and USFS regulations explicitly require a special use authorization for the

use and occupancy of national forest lands and establish requirements that must be

applied to each applicant or permit holder in the decision-making process. USFS had

no discretion to disregard clear statutory direction or allow FDEP to occupy and use

national forest lands in the first place without a special use permit, or to allow

continued occupancy and use particularly after FDEP admitted it lacked the financial

ability to meet the permit conditions and proffered return of the national forest lands

to USFS. The Complaint alleged USFS’s failure to comply with the FLPMA and

USFS’s own regulations constitute agency action unlawfully withheld or

unreasonably delayed under the APA section 706(1). USFS’s actions were subject

to judicial review, and the district court did have subject matter jurisdiction to review

USFS’s actions. The dismissal should be reversed.

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Third, even if USFS’s actions were not subject to judicial review and the

district court lacked subject matter jurisdiction, the district court erred in dismissing

the Complaint with prejudice. A dismissal for lack of subject matter jurisdiction is

not an adjudication on the merits and is entered without prejudice. The district

court’s dismissal with prejudice must be reversed.

ARGUMENT

I. USFS disregarded clear statutory direction by allowing FDEP to occupy


and use national forest lands without a permit. USFS’s action was subject
to judicial review under the APA as arbitrary, capricious, an abuse of
discretion, and otherwise not in accordance with law.

In Count I of their Complaint, Appellants alleged that USFS is violating the

FLPMA and USFS’s own regulations by allowing FDEP to occupy and use national

forest lands without a special use permit. Doc. 1, p. 13. Appellants asserted USFS’s

action allowing FDEP to occupy and use national forest lands was arbitrary,

capricious, and not in accordance with the law. Doc. 1, p. 14. The district court found

this claim was related simply to USFS’s lack of enforcement of FDEP’s 1994 special

use permit and held USFS’s action was committed to agency discretion and not

subject to judicial review. Doc. 37, pp. 4-5, 10, 16. This was error because Count I

of the Complaint was not related to USFS’s lack of enforcement of FDEP’s expired

1994 special use permit, but rather to USFS’s actions allowing FDEP to use and

occupy national forest lands without a special use permit despite a clear statutory

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requirement that any entity occupying national forest lands must have a permit and

setting out strict criteria for granting a permit.

A. There is no statutory provision that precludes judicial review of


USFS’s action allowing FDEP to occupy and use national forest
lands without a permit.

The actions of federal agencies such as USFS are presumed to be subject to

judicial review under the APA. 5 U.S.C. §§ 702, 706; Abbott Labs. v. Gardner, 387

U.S. 136, 140-141 (1967), abrogated on other grounds, Califano v. Sanders, 430

U.S. 99, 105 (1977). Courts are empowered to “compel agency action unlawfully

withheld or unreasonably delayed,” and to set aside agency action “found to be

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

5 U.S.C. § 706(1), (2). Federal courts have long applied a strong presumption

favoring judicial review of agency action. Weyerhaeuser Co. v. U. S. Fish & Wildlife

Service, 139 S. Ct. 361, 370 (2018). That presumption can be rebutted only if the

substantive statute precludes judicial review, or the agency action is committed to

agency discretion by law. Id.; 5 U.S.C. § 701(a)(1), (2).

Here, USFS did not argue the existence of any applicable statutory provision

that precluded judicial review. In the absence of an explicit statutory prohibition, an

agency bears a heavy burden to show by clear and convincing evidence that

Congress meant to prohibit judicial review of agency action. Mach Mining, LLC v.

Equal Emp’t Opportunity Comm’n, 135 S. Ct. 1645, 1651 (2015), quoting Dunlop

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v. Bachowski, 421 U.S. 560, 567-568 (1975). In Mach Mining, the statutory language

provided the agency in that case “shall endeavor to eliminate” unlawful employment

practices through certain specific informal methods, including conciliation, and this

endeavor was a required prerequisite to filing a lawsuit. Mach Mining, LLC v. Equal

Emp’t Opportunity Comm’n, 135 S. Ct. at 1651. The court held this statutory

language was “mandatory, not precatory” because the word “shall” does not allow

for discretion. Id. Hence, the statutory scheme in Mach Mining required the agency

to enforce a prerequisite to filing suit, and this requirement supported judicial review

of the agency’s compliance with that provision. Id. at 1652.

Here, there is no explicit statutory prohibition against judicial review of

USFS’s actions. Therefore, USFS bore a heavy burden to show by clear and

convincing evidence that Congress intended to prohibit judicial review of its action.

Mach Mining, LLC v. Equal Emp’t Opportunity Comm’n, 135 S. Ct. at 1651. USFS

did not meet this burden, but rather argued all claims brought in the Complaint

simply sought to compel USFS to enforce matters committed to USFS’s discretion

and must be dismissed on that basis. Doc. 25, pp. 6-7. The district court likewise

construed all claims of the Complaint as simply seeking to compel USFS to take

action “within the purview of its prosecutorial discretion,” which was committed to

agency discretion by law under the APA at 5 U.S.C. § 701(a)(2). Doc. 37, pp. 7, 10.

This was error because Count I of the Complaint does not seek to compel USFS to

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take enforcement action within the purview of its prosecutorial discretion, or action

committed to USFS’s discretion by law.

B. USFS’s action allowing FDEP to occupy and use national forest


lands without a permit is not within the purview of USFS’s
prosecutorial discretion or committed to USFS’s discretion by law
and is subject to judicial review.

Appellants asserted in Count I that USFS had disregarded legislative direction

and violated the FLPMA and USFS’s own regulations by allowing FDEP to occupy

and use federal lands without a permit. Doc. 1, pp. 13-14. USFS’s actions are

presumed subject to judicial review unless the applicable statutory scheme precludes

judicial review or USFS’s actions are committed to agency discretion by law.

Weyerhaeuser Co. v. U. S. Fish & Wildlife Service, 139 S. Ct. at 370; Mach Mining,

LLC v. Equal Emp’t Opportunity Comm’n, 135 S. Ct. at 1651. As shown above,

there is no statutory provision that precludes judicial review of USFS’s action

permitting FDEP to occupy and use national forest lands without a permit. In

addition, a close reading of the applicable statutes and regulations in this case

demonstrates USFS’s action also was not within the purview of USFS’s

prosecutorial discretion or committed to USFS’s discretion by law and was subject

to judicial review.

To this point, the FLPMA authorizes the Secretary of Agriculture to “grant,

issue, or renew rights-of-way for certain uses of national forest lands.” 43 U.S.C.

§ 1761(a). At first glance, this statute appears to confer on USFS broad discretion.

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However, the FLMPA provides that “no right-of-way…shall be granted, issued, or

renewed…except under and subject to the provisions, limitations, and conditions of

this subchapter.” 43 U.S.C. § 1770(a). Those “provisions, limitations, and conditions”

require that prior to granting, issuing, or renewing a right-of-way authorization, the

Secretary of Agriculture “shall require the applicant to submit plans and other

information related to the use that is necessary to a determination of whether the

right-of-way should be granted.” 43 U.S.C. § 1761(b). Further, the FLPMA provides

the “Secretary shall only grant, issue, or renew a right-of-way when the applicant

has demonstrated it has the technical and financial capability to construct the project

for which the right-of-way is requested in accord with the requirements of the

FLPMA.” 43 U.S.C. § 1764(j). Hence, Congress has limited USFS’s discretion in

actions allowing the occupancy and use of national forest lands and USFS is not free

to disregard this legislative direction. Heckler v. Chaney, 470 U.S. 821, 833 (1985).

In addition, USFS regulations require that “Before conducting a special use,

individuals or entities must submit a proposal…and must obtain a special use

authorization…” 36 C.F.R. § 251.50(a). USFS acknowledged this requirement in its

February 11, 2013 letter to the FDEP Secretary in which USFS stated, “All uses of

National Forest lands must have an authorization for occupancy, as provided in [36

C.F.R. 251.50(a)].” A.R. Doc. 24, p. FS-002333. Moreover, USFS regulations

require a permit applicant must file a proposal in writing, and must provide sufficient

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evidence to demonstrate it has “the technical and financial capability to construct,

operate, maintain, and terminate the project for which an authorization is requested.”

36 C.F.R. § 251.54(b); 36 C.F.R. § 251.54(d)(3). In this case, the “project for which

the right-of-way” was requested was FDEP’s temporary operation of Kirkpatrick

Dam and Rodman Reservoir while proceeding with partial removal of the dam and

restoration of the Ocklawaha River. A.R. Doc. 24, pp. FS-001652, FS-001660, FS-

002259.

In addition, the FLPMA provides that each right-of-way or permit granted for

the occupancy and use of federal forest lands “shall be limited to a reasonable term

in light of all circumstances concerning the project.” 43 U.S.C. § 1764(b). In this

case, the “circumstances concerning the project” include the December 2001 Final

Environmental Impact Statement and USFS’s Record of Decision, which allowed

FDEP’s continued occupancy and use of national forest lands only “while the State

[of Florida] proceeds with restoration of the Ocklawaha River…” A.R. Doc. 24, pp.

FS-001652, FS-002014—FS-002252. Despite this, FDEP has been occupying and

using federal forest lands without a permit since its permit expired in 2002 and has

never proceeded with restoration of the Ocklawaha River. A.R. Doc. 24, pp. FS-

002322, FS-002333.

In light of the clear direction in the substantive statute and the “circumstances

concerning the project,” USFS has abused its discretion and violated FLPMA and

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USFS’s own regulations by allowing FDEP to occupy and use national forest lands

since 2002 without a permit or the ability to comply with the statutory prerequisites

to obtain a permit and the explicit conditions of the renewal permit and USFS’s

Record of Decision. A.R. Doc. 24, pp. FS-001652, FS-001660.

The language of these statutory and regulatory provisions is mandatory rather

than precatory because the word “shall” does not allow USFS any discretion. Mach

Mining, LLC V. Equal Emp’t Opportunity Comm’n, 135 S. Ct. at 1651. Again, USFS

is not free to disregard these clear legislative directives. Heckler v. Chaney, 470 U.S.

at 833. To find otherwise would render the clear statutory language meaningless and

suggest Congress had no purpose in including these mandatory directives.

Nevertheless, despite clear legislative direction otherwise, the record shows

USFS is allowing FDEP to occupy and use national forest lands even though FDEP

admittedly cannot meet the required prerequisites or financial capability to obtain a

special use permit or comply with the renewal permit conditions. A.R. Doc. 24, p.

FS-002288. FDEP in its July 19, 2002 letter declining to execute the permit renewal

informed USFS that FDEP could not meet the terms and conditions of the renewal

permit because the state agency lacked funding to proceed with restoration and

therefore felt obligated to “return your land back to you, the U.S. Forest Service,

along with the unsigned special use permit.” A.R. Doc. 24, p. FS-002288. USFS

responded in a letter dated July 26, 2002 acknowledging FDEP’s lack of financial

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capability to comply with the required conditions for issuance of the renewal permit.

A.R. Doc. 24, p. FS-002307.

Since FDEP failed to demonstrate it has the financial capability to construct

the project for which the special use permit was requested, and in fact explicitly

admitted in its July 19, 2002 letter that it lacked the financial capability, USFS had

no discretion to grant or renew a special use permit allowing FDEP’s continued

occupancy and use of national forest lands. 43 U.S.C. § 1764(j). Despite this, USFS

in 2010 and again in 2013 presented renewal permits to FDEP for the state’s use and

occupancy of national forest lands and instructed the state agency to execute and

return the renewal permit. A.R. Doc. 24, pp. FS-002322, FS-002333. FDEP declined

to execute the renewal permit in 2002, 2010, and 2013, but USFS continues to

disregard clear statutory directives by allowing the state to continue occupying and

using national forest lands without a special use permit or the ability to comply with

the statutory and regulatory requirements to obtain a renewal permit. Doc 1, p. 7;

Doc 25, p. 3.

Contrary to the district court’s findings, Count I of the Complaint did not seek

to compel agency action to enforce the conditions of an expired permit. Doc. 37.

Rather, Count I challenged agency action allowing the ongoing occupation of

national forest lands without a permit, in the face of clear statutory direction

requiring special use authorization, and alleged that action was arbitrary, capricious,

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an abuse of discretion, and otherwise not in accordance with law. Doc. 1, pp. 13-14.

USFS cannot simply ignore statutory direction and allow the continued unauthorized

occupation and use of national forest lands. Heckler v. Chaney, 470 U.S. at 833. As

shown above, the FLPMA and implementing regulations limit USFS’s discretion

and require the agency to apply specific criteria in taking action to permit the

occupancy and use of federal forest lands. USFS violated the FLPMA and its own

regulations by allowing FDEP to occupy and use national forest lands without a

special use permit and with the knowledge that FDEP lacked financial capability to

comply with permit prerequisites and conditions. Doc. 1, pp. 13-14.

The trial court relied heavily on this Court’s decision in Conservancy of Sw.

Florida v. U.S. Fish & Wildlife Serv., 677 F.3d 1073, 1081 (11th Cir. 2012) to

support its holding, but that case does not support the trial court’s result. In

Conservancy of Sw. Florida, the U.S. Fish and Wildlife Service denied a petition to

initiate rulemaking to designate critical habitat for the Florida panther, and this Court

held that the governing statute did not require the agency to do so, hence judicial

review was not authorized under the APA. Id. Here, by contrast, the FLPMA and

implementing regulations do not provide any discretion for lands to be occupied

without a current valid permit issued following a mandatory procedure. See, e.g., 43

U.S.C. § 1764(j) (Secretary “shall” only allow use if conditions are met). While

USFS may have discretion about whether to grant a permit for use and occupation

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of particular lands, the statute and regulations do not provide USFS with discretion

to allow use and occupation of lands without a permit at all.

Therefore, it was error for the district court to dismiss Count I of the

Complaint for lack of subject matter jurisdiction. USFS’s action was arbitrary,

capricious, an abuse of discretion, and otherwise not in accordance with the law

under section 5 U.S.C. 706(2)(A). USFS’s action was subject to judicial review;

therefore, the dismissal as to Count I should be reversed.

II. Any presumption that USFS’s action was not subject to judicial review
because it involved an agency enforcement decision was rebutted because
the statutory scheme here provided clear direction to the agency.

In Counts III and IV of their Complaint, Appellants asserted there existed a

case or controversy as to whether FDEP’s special use permit was expired. Doc. 1,

pp. 17-18, 20-21. USFS has acknowledged the permit is expired, therefore that

question is moot. Doc. 25, pp. 1, 3, 15; A.R. Doc. 24, pp. FS-002322, FS-002333.

However, Appellants also alleged in Counts III and IV of the Complaint that

expiration of FDEP’s permit triggered certain regulatory requirements that USFS

has failed to apply. Doc. 1, pp. 17-21. Appellants asserted USFS’s failure to apply

its own regulations requiring removal of the dam and restoration of the Ocklawaha

River, and USFS’s action allowing FDEP’s continued use and occupancy of national

forest land after its special use permit expired, constitutes agency action unlawfully

22
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withheld and unreasonably delayed under the APA, 5 U.S.C. § 706(1). Doc. 1, pp.

18-21.

The district court found these counts were related to USFS’s failure to enforce

the 1994 special use permit, and held this issue was committed to agency discretion

and not subject to judicial review. Doc. 37, pp. 4-5, 10, 16. The district court further

found that the FLPMA and USFS regulations did not require USFS to take any

particular action and did not provide any enforcement guidelines for the court to

review. Doc. 37, pp. 12-14. Based on these findings, the district court dismissed all

counts for lack of subject matter jurisdiction. Doc. 37, p. 16. This was error because,

as shown above, a close reading of the statutes and regulations at issue in this case

demonstrates USFS’s action was not committed to such broad agency discretion and

was subject to judicial review.

Even where a statutory scheme confers broad authority, a federal agency’s

discretion is not boundless, and courts are empowered to set aside agency action that

constitutes an abuse of discretion. Dep’t of Commerce v. N.Y., 139 S. Ct. 2551, 2568

(2019). Indeed, courts have construed quite narrowly the exception for actions

“committed to agency discretion by law” under section 5 U.S.C. § 701(a)(2), and

have found agency action was “committed to agency discretion by law” only in rare

circumstances where the relevant statute is so broad that a court would have no

23
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meaningful standards by which to judge the agency’s exercise of discretion.

Weyerhaeuser Co., 139 S. Ct. at 370.

Despite the strong presumption favoring judicial review of administrative

action, agency decisions to not take enforcement action are generally presumed

immune from judicial review because such actions have traditionally been

committed to agency discretion. Heckler v. Chaney, 470 U.S. at 832. This

presumption may be rebutted where the substantive statute provides guidelines for

the agency to follow in making enforcement decisions. Id. at 832-833. An agency’s

discretion in the exercise of its enforcement power may be limited through

substantive priorities established by Congress. Id. at 833. Thus, while agencies have

broad discretion in exercising their enforcement powers, they are not free to

disregard legislative direction. Id. at 833.

An agency’s failure to act is remediable under the APA, 5 U.S.C. § 706(1),

and can be compelled where the agency failed to take a discrete action it is legally

required to take. Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 63-64

(2004). A claimant must allege the agency failed to take some particular action it is

required to take under a statutory provision or agency regulations that have the force

of law, and that failure to act has caused harm. Id. at 64-65. The Appellants did allege

USFS failed to take particular action it is required to take under the FLPMA and

24
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USFS regulations by allowing FDEP to occupy national forest lands without a permit.

Doc 1, pp. 13, 14.

Here, the FLPMA and USFS regulations require a special use authorization

for the occupancy and use of national forest lands. USFS acknowledged this in its

February 11, 2013 letter to FDEP in which USFS stated the agency must ensure the

Kirkpatrick Dam and other structures “are authorized under a permit that will

provide for continued operations,” because “[a]ll uses of National Forest lands must

have an authorization for occupancy as provided in [36 C.F.R. 251.50(a)].” A.R.

Doc. 24, pp. FS-002333—FS-002334. Hence, USFS admits its own regulations

require the agency to ensure FDEP’s occupancy and use of national forest lands is

authorized by a special use permit. This requirement is a discrete action the FLPMA

and USFS’s own regulations compel USFS to take. USFS is not free to disregard

clear legislative direction and fail to take action it is required to take.

Therefore, the district court erred in dismissing Counts III and IV of the

Complaint for lack of subject matter jurisdiction. The Complaint alleged USFS

failed to take discrete action required of the agency under FLPMA and USFS’s own

regulations, specifically that USFS failed to require special use authorization for

FDEP’s continued occupancy and use of national forest lands and allowed continued

use and occupancy without a valid permit. The Complaint alleged USFS’s failure to

take this discrete action constitutes agency action unlawfully withheld and

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unreasonably delayed under the APA, 5. U.S.C. § 706(1). USFS’s action is subject

to judicial review. The dismissal as to Counts III and IV should be reversed.

III. If the district court properly dismissed the Complaint for lack of subject
matter jurisdiction, it should not have dismissed with prejudice.

Federal Rule of Civil Procedure 41(b) provides that an involuntary dismissal

for lack of jurisdiction does not operate as an adjudication on the merits. The

Eleventh Circuit Court of Appeals has consistently held a dismissal for lack of

subject matter jurisdiction is not a judgment on the merits and is entered without

prejudice. Stalley v. Orlando Regional Healthcare System, Inc., 524 F. 3d 1229,

1232 (11th Cir. 2008), citing Crotwell v. Hockman-Lewis Ltd., 734 F. 2d 767, 769

(11th Cir. 1984); Boudloche v. Conoco Oil Corporation, 615 F.2d 687, 689 (5th Cir.

1980). If a court lacks subject matter jurisdiction over an action, the court has no

power to render judgment on the merits. Stalley v. Orlando Regional Healthcare

System, Inc. 524 F. 3d at 1234-1235.

In Stalley this Court remanded to the district court for entry of an order

dismissing the action without prejudice. Id. at 1235. Taking an alternative approach,

in Crotwell this Court modified the district court’s order instead of remanding for

entry of an order without prejudice. Crotwell v. Hockman-Lewis Ltd., 734 F. 2d at

769.

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Here the district court held it lacked subject matter jurisdiction and entered an

order dismissing the action with prejudice, effectively rendering judgment on the

merits and precluding Appellants from amending their Complaint or refiling their

claims. Doc. 37, pp. 16-17. If the district court lacked subject matter jurisdiction then

it also lacked power to render judgment on the merits and should have dismissed

without prejudice. Stalley v. Orlando Regional Healthcare System, Inc. 524 F. 3d at

1234-1235. If this Court finds the district court was correct in concluding it lacked

subject matter jurisdiction, this Court should remand for entry of an order dismissing

the action without prejudice or should modify the district court’s order without

remand. Crotwell v. Hockman-Lewis Ltd., 734 F. 2d at 769.

CONCLUSION

USFS’s action allowing FDEP to occupy and use national forest lands without

a special use permit, despite clear legislative direction requiring a special use permit,

was subject to judicial review under the APA as arbitrary, capricious, an abuse of

discretion, and otherwise not in accordance with law. Moreover, USFS failed to take

discrete action required under the FLPMA and USFS’s own regulations by not

requiring FDEP to obtain a special use permit or remove the structures and restore

the occupied national forest lands. This failure to take required action constitutes

agency action unlawfully withheld and unreasonably delayed under the APA. These

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claims are subject to judicial review. The district court erred in finding it lacked

subject matter jurisdiction and dismissing the complaint.

In the alternative, if the district court properly dismissed the Complaint for

lack of subject matter jurisdiction, the dismissal should not have been with prejudice.

The district court’s dismissal should be reversed, and the case remanded for

the district court to conduct a proper review of USFS’s actions on the merits.

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CERTIFICATE OF COMPLIANCE

This document complies with the type-volume limit of Fed. R. App. P.

32(a)(7)(B) because, excluding the materials properly excluded by Fed. R. App. P.

32(f), this document contains 6,649 words as counted by the word-processing system

used to prepare this document.

Pamela Jo Hatley
PAMELA JO HATLEY, P.A.
P. O. Box 47477
Tampa, FL 33646-0113
Tel: 813-727-0672
Email: pamela@landuse-appeals.com
Counsel for Appellant
Florida Defenders of the Environment,
Bruce Kaster, and Joseph Little

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CERTIFICATE OF SERVICE

I certify that I served a copy of Appellants’ Brief with attached Addendum on

counsel of record on _____________________


April 22, 2021 by U.S. First Class Mail and by

filing electronically, which generated a Notice of Docket Activity, sent to the

following:

Brian C. Toth
U.S. Department of Justice
ENRD, Appellate Section
P. O. Box 7415
Washington DC 20044
Brian.toth@usdoj.gov
Attorney for Appellee
U.S. Forest Service

Pamela Jo Hatley
PAMELA JO HATLEY, P.A.
P. O. Box 47477
Tampa, FL 33646-0113
Tel: 813-727-0672
Email: pamela@landuse-appeals.com
Counsel for Appellant
Florida Defenders of the Environment,
Bruce Kaster, and Joseph Little

28
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Addendum A-1
5 U.S.C. 701 - 706
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5 USC 701: Application; definitions
Text contains those laws in effect on July 13, 2020
From Title 5-GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I-THE AGENCIES GENERALLY
CHAPTER 7-JUDICIAL REVIEW
Jump To:
Source Credit
References In Text
Amendments

§701. Application; definitions


(a) This chapter applies, according to the provisions thereof, except to the extent that-
(1) statutes preclude judicial review; or
(2) agency action is committed to agency discretion by law.

(b) For the purpose of this chapter-


(1) "agency" means each authority of the Government of the United States, whether or not it is within or subject to
review by another agency, but does not include-
(A) the Congress;
(B) the courts of the United States;
(C) the governments of the territories or possessions of the United States;
(D) the government of the District of Columbia;
(E) agencies composed of representatives of the parties or of representatives of organizations of the parties to
the disputes determined by them;
(F) courts martial and military commissions;
(G) military authority exercised in the field in time of war or in occupied territory; or
(H) functions conferred by sections 1738, 1739, 1743, and 1744 of title 12; subchapter II of chapter 471 of title
49; or sections 1884, 1891–1902, and former section 1641(b)(2), of title 50, appendix; 1 and

(2) "person", "rule", "order", "license", "sanction", "relief", and "agency action" have the meanings given them by
section 551 of this title.
( Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 392 ; Pub. L. 103–272, §5(a), July 5, 1994, 108 Stat. 1373 ; Pub. L. 111–350,
§5(a)(3), Jan. 4, 2011, 124 Stat. 3841 .)

H R N
Revised Statutes and
Derivation U.S. Code
Statutes at Large
(a) 5 U.S.C. 1009 (introductory clause). June 11, 1946, ch. 324, §10 (introductory
clause), 60 Stat. 243 .
In subsection (a), the words "This chapter applies, according to the provisions thereof," are added to
avoid the necessity of repeating the introductory clause of former section 1009 in sections 702–706.
Subsection (b) is added on authority of section 2 of the Act of June 11, 1946, ch. 324, 60 Stat. 237 , as
amended, which is carried into section 551 of this title.
In subsection (b)(1)(G), the words "or naval" are omitted as included in "military".
In subsection (b)(1)(H), the words "functions which by law expire on the termination of present
hostilities, within any fixed period thereafter, or before July 1, 1947" are omitted as executed. Reference
to the "Selective Training and Service Act of 1940" is omitted as that Act expired on Mar. 31, 1947.
Reference to the "Sugar Control Extension Act of 1947" is omitted as that Act expired on Mar. 31, 1948.
References to the "Housing and Rent Act of 1947, as amended" and the "Veterans' Emergency Housing
Act of 1946" have been consolidated as they are related. The reference to former section 1641(b)(2) of title
50, appendix, is retained notwithstanding its repeal by §111(a)(1) of the Act of Sept. 21, 1961, Pub. L. 87–
256, 75 Stat. 538 , since §111(c) of the Act provides that a reference in other Acts to a provision of law
repealed by §111(a) shall be considered to be a reference to the appropriate provisions of Pub. L. 87–256.
Standard changes are made to conform with the definitions applicable and the style of this title as
outlined in the preface to the report.
USCA11 Case: 20-12046 R Date Filed: 04/22/2021
T Page: 43 of 81
Sections 1884 and 1891–1902 of title 50, appendix, referred to in subsec. (b)(1)(H), were a part of the
various Housing and Rent Acts which were classified to section 1881 et seq. of the former Appendix to
Title 50, War and National Defense, and had been repealed or omitted from the Code as executed prior
to the elimination of the Appendix to Title 50. See Elimination of Title 50, Appendix note preceding section
1 of Title 50. Section 1641 of title 50, appendix, referred to in subsec. (b)(1)(H), was repealed by Pub. L. 87–
256, §111(a)(1), Sept. 21, 1961, 75 Stat. 538 .

A
2011-Subsec. (b)(1)(H). Pub. L. 111–350 struck out "chapter 2 of title 41;" after "title 12;".
1994-Subsec. (b)(1)(H). Pub. L. 103–272 substituted "subchapter II of chapter 471 of title 49; or sections"
for "or sections 1622,".
1 See References in Text note below.
USCA11 Case: 20-12046 Date Filed: 04/22/2021 Page: 44 of 81
5 USC 702: Right of review
Text contains those laws in effect on July 13, 2020
From Title 5-GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I-THE AGENCIES GENERALLY
CHAPTER 7-JUDICIAL REVIEW
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Amendments

§702. Right of review


A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within
the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking
relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to
act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the
ground that it is against the United States or that the United States is an indispensable party. The United States may
be named as a defendant in any such action, and a judgment or decree may be entered against the United States:
Provided, That any mandatory or injunctive decree shall specify the Federal officer or officers (by name or by title), and
their successors in office, personally responsible for compliance. Nothing herein (1) affects other limitations on judicial
review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable
ground; or (2) confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly
forbids the relief which is sought.
( Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 392 ; Pub. L. 94–574, §1, Oct. 21, 1976, 90 Stat. 2721 .)

H R N
Revised Statutes and
Derivation U.S. Code
Statutes at Large
5 U.S.C. 1009(a). June 11, 1946, ch. 324, §10(a), 60 Stat. 243 .
Standard changes are made to conform with the definitions applicable and the style of this title as
outlined in the preface to the report.
A
1976-Pub. L. 94–574 removed the defense of sovereign immunity as a bar to judicial review of Federal
administrative action otherwise subject to judicial review.
USCA11 Case: 20-12046 Date Filed: 04/22/2021 Page: 45 of 81
5 USC 703: Form and venue of proceeding
Text contains those laws in effect on July 13, 2020
From Title 5-GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I-THE AGENCIES GENERALLY
CHAPTER 7-JUDICIAL REVIEW
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Amendments

§703. Form and venue of proceeding


The form of proceeding for judicial review is the special statutory review proceeding relevant to the subject matter in
a court specified by statute or, in the absence or inadequacy thereof, any applicable form of legal action, including
actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus, in a court of
competent jurisdiction. If no special statutory review proceeding is applicable, the action for judicial review may be
brought against the United States, the agency by its official title, or the appropriate officer. Except to the extent that
prior, adequate, and exclusive opportunity for judicial review is provided by law, agency action is subject to judicial
review in civil or criminal proceedings for judicial enforcement.
( Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 392 ; Pub. L. 94–574, §1, Oct. 21, 1976, 90 Stat. 2721 .)

H R N
Revised Statutes and
Derivation U.S. Code
Statutes at Large
5 U.S.C. 1009(b). June 11, 1946, ch. 324, §10(b), 60 Stat. 243 .
Standard changes are made to conform with the definitions applicable and the style of this title as
outlined in the preface to the report.
A
1976-Pub. L. 94–574 provided that if no special statutory review proceeding is applicable, the action for
judicial review may be brought against the United States, the agency by its official title, or the appropriate
officer as defendant.
USCA11 Case: 20-12046 Date Filed: 04/22/2021 Page: 46 of 81
5 USC 704: Actions reviewable
Text contains those laws in effect on July 13, 2020
From Title 5-GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I-THE AGENCIES GENERALLY
CHAPTER 7-JUDICIAL REVIEW
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§704. Actions reviewable


Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a
court are subject to judicial review. A preliminary, procedural, or intermediate agency action or ruling not directly
reviewable is subject to review on the review of the final agency action. Except as otherwise expressly required by
statute, agency action otherwise final is final for the purposes of this section whether or not there has been presented
or determined an application for a declaratory order, for any form of reconsideration, or, unless the agency otherwise
requires by rule and provides that the action meanwhile is inoperative, for an appeal to superior agency authority.
( Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 392 .)

H R N
Revised Statutes and
Derivation U.S. Code
Statutes at Large
5 U.S.C. 1009(c). June 11, 1946, ch. 324, §10(c), 60 Stat. 243 .
Standard changes are made to conform with the definitions applicable and the style of this title as
outlined in the preface of this report.
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5 USC 705: Relief pending review
Text contains those laws in effect on July 13, 2020
From Title 5-GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I-THE AGENCIES GENERALLY
CHAPTER 7-JUDICIAL REVIEW
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Source Credit

§705. Relief pending review


When an agency finds that justice so requires, it may postpone the effective date of action taken by it, pending
judicial review. On such conditions as may be required and to the extent necessary to prevent irreparable injury, the
reviewing court, including the court to which a case may be taken on appeal from or on application for certiorari or
other writ to a reviewing court, may issue all necessary and appropriate process to postpone the effective date of an
agency action or to preserve status or rights pending conclusion of the review proceedings.
( Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 393 .)

H R N
Revised Statutes and
Derivation U.S. Code
Statutes at Large
5 U.S.C. 1009(d). June 11, 1946, ch. 324, §10(d), 60 Stat. 243 .
Standard changes are made to conform with the definitions applicable and the style of this title as
outlined in the preface of this report.
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5 USC 706: Scope of review
Text contains those laws in effect on July 13, 2020
From Title 5-GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I-THE AGENCIES GENERALLY
CHAPTER 7-JUDICIAL REVIEW
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Miscellaneous

§706. Scope of review


To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of
law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an
agency action. The reviewing court shall-
(1) compel agency action unlawfully withheld or unreasonably delayed; and
(2) hold unlawful and set aside agency action, findings, and conclusions found to be-
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
(D) without observance of procedure required by law;
(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise
reviewed on the record of an agency hearing provided by statute; or
(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.

In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party,
and due account shall be taken of the rule of prejudicial error.
( Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 393 .)

H R N
Revised Statutes and
Derivation U.S. Code
Statutes at Large
5 U.S.C. 1009(e). June 11, 1946, ch. 324, §10(e), 60 Stat. 243 .
Standard changes are made to conform with the definitions applicable and the style of this title as
outlined in the preface of this report.
A R
Pub. L. 85–791, Aug. 28, 1958, 72 Stat. 941 , which authorized abbreviation of record on review or
enforcement of orders of administrative agencies and review on the original papers, provided, in section
35 thereof, that: "This Act [see Tables for classification] shall not be construed to repeal or modify any
provision of the Administrative Procedure Act [see Short Title note set out preceding section 551 of this
title]."
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Addendum A-2
43 U.S.C. 1761 - 1771
FLPMA §501 USCA11 Case:FEDERAL
20-12046 Date Filed:
LAND POLICY 04/22/2021ACT Page: 50 of 81
AND MANAGEMENT 43 U.S.C. §1761

Subchapter V—Rights-of-Way
§1761. [FLPMA §501] number of shares and the percentage of any class of voting stock of
that entity owned, directly or indirectly, by the affiliate.
Grant, issue, or renewal of rights-of-way (3) The Secretary of Agriculture shall have the authority to ad-
(a) Authorized purposes minister all rights-of-way granted or issued under authority of pre-
The Secretary, with respect to the public lands (including public vious Acts with respect to lands under the jurisdiction of the Secre-
lands, as defined in section 103(e) of this Act, which are reserved from tary of Agriculture, including rights-of-way granted or issued pur-
entry pursuant to section 24 of the Federal Power Act (16 U.S.C. 818)) suant to authority given to the Secretary of the Interior by such pre-
and, the Secretary of Agriculture, with respect to lands within the Na- vious Acts.
tional Forest System (except in each case land designated as wilder- (c) Permanent easement for water systems; issuance,
ness), are authorized to grant, issue, or renew rights-of-way over, preconditions, etc.
upon, under, or through such lands for— (1) Upon receipt of a written application pursuant to paragraph
(1) reservoirs, canals, ditches, flumes, laterals, pipes, pipelines, (2) of this subsection from an applicant meeting the requirements of
tunnels, and other facilities and systems for the impoundment, stor- this subsection, the Secretary of Agriculture shall issue a permanent
age, transportation, or distribution of water; easement, without a requirement for reimbursement, for a water
(2) pipelines and other systems for the transportation or distribu- system as described in subsection (a)(1) of this section, traversing
tion of liquids and gases, other than water and other than oil, natural Federal lands within the National Forest System (“National Forest
gas, synthetic liquid or gaseous fuels, or any refined product pro- Lands”), constructed and in operation or placed into operation prior
duced therefrom, and for storage and terminal facilities in connec- to October 21, 1976, if—
tion therewith; (A) the traversed National Forest lands are in a State where the
(3) pipelines, slurry and emulsion systems, and conveyor belts appropriation doctrine governs the ownership of water rights;
for transportation and distribution of solid materials, and facilities (B) at the time of submission of the application the water sys-
for the storage of such materials in connection therewith; tem is used solely for agricultural irrigation or livestock watering
(4) systems for generation, transmission, and distribution of elec- purposes;
tric energy, except that the applicant shall also comply with all ap- (C) the use served by the water system is not located solely on
plicable requirements of the Federal Energy Regulatory Commis- Federal lands;
sion under the Federal Power Act, including part 17 thereof (41 Stat. (D) the originally constructed facilities comprising such sys-
1063, 16 U.S.C. 791a-825r).8; tem have been in substantially continuous operation without
(5) systems for transmission or reception of radio, television, abandonment;
telephone, telegraph, and other electronic signals, and other means (E) the applicant has a valid existing right, established under
of communication; applicable State law, for water to be conveyed by the water sys-
tem;
(6) roads, trails, highways, railroads, canals, tunnels, tramways,
airways, livestock driveways, or other means of transportation ex- (F) a recordable survey and other information concerning the
cept where such facilities are constructed and maintained in con- location and characteristics of the system as necessary for proper
nection with commercial recreation facilities on lands in the Na- management of National Forest lands is provided to the Secre-
tional Forest System; or tary of Agriculture by the applicant for the easement; and
(G) the applicant submits such application on or before De-
(7) such other necessary transportation or other systems or facili- cember 31, 1996.
ties which are in the public interest and which require rights-of-way (2)(A) Nothing in this subsection shall be construed as affecting
over, upon, under, or through such lands. any grants made by any previous Act. To the extent any such previ-
(b) Procedures applicable; administration ous grant of right-of-way is a valid existing right, it shall remain in
(1) The Secretary concerned shall require, prior to granting, issu- full force and effect unless an owner thereof notifies the Secretary
ing, or renewing a right-of-way, that the applicant submit and dis- of Agriculture that such owner elects to have a water system on such
close those plans, contracts, agreements, or other information rea- right-of-way governed by the provisions of this subsection and sub-
sonably related to the use, or intended use, of the right-of-way, in- mits a written application for issuance of an easement pursuant to
cluding its effect on competition, which he deems necessary to a de- this subsection, in which case upon the issuance of an easement pur-
termination, in accordance with the provisions of this Act, as to suant to this subsection such previous grant shall be deemed to have
whether a right-of-way shall be granted, issued, or renewed and the been relinquished and shall terminate.
terms and conditions which should be included in the right-of-way. (B) Easements issued under the authority of this subsection
(2) If the applicant is a partnership, corporation, association, or shall be fully transferable with all existing conditions and with-
other business entity, the Secretary concerned, prior to granting a out the imposition of fees or new conditions or stipulations at the
right-to-way9 pursuant to this subchapter, shall require the appli- time of transfer. The holder shall notify the Secretary of Agricul-
cant to disclose the identity of the participants in the entity, when he ture within sixty days of any address change of the holder or
deems it necessary to a determination, in accordance with the provi- change in ownership of the facilities.
sions of this subchapter, as to whether a right-of-way shall be (C) Easements issued under the authority of this subsection
granted, issued, or renewed and the terms and conditions which shall include all changes or modifications to the original facilities
should be included in the right-of-way. Such disclosures shall in- in existence as of October 21, 1976, the date of enactment of this
clude, where applicable: (A) the name and address of each partner; Act.
(B) the name and address of each shareholder owning 3 per centum (D) Any future extension or enlargement of facilities after Oc-
or more of the shares, together with the number and percentage of tober 21, 1976, shall require the issuance of a separate authoriza-
any class of voting shares of the entity which such shareholder is tion, not authorized under this subsection.
authorized to vote; and (C) the name and address of each affiliate of (3)(A) Except as otherwise provided in this subsection, the Sec-
the entity together with, in the case of an affiliate controlled by the retary of Agriculture may terminate or suspend an easement issued
entity, the number of shares and the percentage of any class of vot- pursuant to this subsection in accordance with the procedural and
ing stock of that affiliate owned, directly or indirectly, by that en- other provisions of section 1766 of this title. An easement issued
tity, and, in the case of an affiliate which controls that entity, the pursuant to this subsection shall terminate if the water system for

7. So in original. Probably should be part “I”.


8. So in original. The period preceding the semicolon probably should not appear.
9. So in original. Probably should be “right-of-way”.

503
43 U.S.C. §1762 USCA11 Case: 20-12046 Date Filed:
ENVIRONMENTAL 04/22/2021
LAW DESKBOOK Page: 51 of 81 FLPMA §502

which such easement was issued is used for any purpose other than Abolition of Office of Federal Inspector note under section 719e of Title 15, Com-
agricultural irrigation or livestock watering use. For purposes of merce and Trade.
subparagraph (D) of paragraph (1) of this subsection, non-use of a
water system for agricultural irrigation or livestock watering pur- §1762. [FLPMA §502]
poses for any continuous five-year period shall constitute a rebutta- Roads
ble presumption of abandonment of the facilities comprising such (a) Authority to acquire, construct, and maintain; financing
system. arrangements
(B) Nothing in this subsection shall be deemed to be an asser- The Secretary, with respect to the public lands, is authorized to pro-
tion by the United States of any right or claim with regard to the vide for the acquisition, construction, and maintenance of roads
reservation, acquisition, or use of water. Nothing in this subsec- within and near the public lands in locations and according to specifi-
tion shall be deemed to confer on the Secretary of Agriculture cations which will permit maximum economy in harvesting timber
any power or authority to regulate or control in any manner the from such lands tributary to such roads and at the same time meet the
appropriation, diversion, or use of water for any purpose (nor to requirements for protection, development, and management of such
diminish any such power or authority of such Secretary under ap- lands for utilization of the other resources thereof. Financing of such
plicable law) or to require the conveyance or transfer to the roads may be accomplished (1) by the Secretary utilizing appropriated
United States of any right or claim to the appropriation, diver- funds, (2) by requirements on purchasers of timber and other products
sion, or use of water. from the public lands, including provisions for amortization of road
(C) Except as otherwise provided in this subsection, all costs in contracts, (3) by cooperative financing with other public agen-
rights-of-way issued pursuant to this subsection are subject to all cies and with private agencies or persons, or (4) by a combination of
conditions and requirements of this Act. these methods: Provided, That, where roads of a higher standard than
(D) In the event a right-of-way issued pursuant to this subsec- that needed in the harvesting and removal of the timber and other
tion is allowed to deteriorate to the point of threatening persons products covered by the particular sale are to be constructed, the pur-
or property and the holder of the right-of-way, after consultation chaser of timber and other products from public lands shall not, except
with the Secretary of Agriculture, refuses to perform the repair when the provisions of the second proviso of this subsection apply, be
and maintenance necessary to remove the threat to persons or required to bear that part of the costs necessary to meet such higher
property, the Secretary shall have the right to undertake such re- standard, and the Secretary is authorized to make such arrangements
pair and maintenance on the right-of-way and to assess the holder to this end as may be appropriate: Provided further, That when timber
for the costs of such repair and maintenance, regardless of is offered with the condition that the purchaser thereof will build a
whether the Secretary had required the holder to furnish a bond or road or roads in accordance with standards specified in the offer, the
other security pursuant to subsection (i) of this section. purchaser of the timber will be responsible for paying the full costs of
(d) With respect to any project or portion thereof that was licensed construction of such roads.
pursuant to, or granted an exemption from, part I of the Federal Power (b) Recordation of copies of affected instruments
Act which is located on lands subject to a reservation under section 24 Copies of all instruments affecting permanent interests in land exe-
of the Federal Power Act and which did not receive a permit, right-of- cuted pursuant to this section shall be recorded in each county where
way or other approval under this section prior to enactment of this sub- the lands are located.
section, no such permit, right-of-way, or other approval shall be re- (c) Maintenance or reconstruction of facilities by users
quired for continued operation, including continued operation pursu- The Secretary may require the user or users of a road, trail, land, or
ant to section 15 of the Federal Power Act, of such project unless the other facility administered by him through the Bureau, including pur-
Commission determines that such project involves the use of any addi- chasers of Government timber and other products, to maintain such fa-
tional public lands or National Forest lands not subject to such reser- cilities in a satisfactory condition commensurate with the particular
vation. use requirements of each. Such maintenance to be borne by each user
(Pub. L. 94-579, title V, §501, Oct. 21, 1976, 90 Stat. 2776; Pub. L. 99-545, shall be proportionate to total use. The Secretary may also require the
§1(b), (c), Oct. 27, 1986, 100 Stat. 3047, 3048; Pub. L. 102-486, §2401, Oct. user or users of such a facility to reconstruct the same when such re-
24, 1992, 106 Stat. 3096.) construction is determined to be necessary to accommodate such use.
References In Text If such maintenance or reconstruction cannot be so provided or if the
The Federal Power Act of 1935 (49 Stat. 847; 16 U.S.C. 791), referred to in sub- Secretary determines that maintenance or reconstruction by a user
sec. (a), probably means the Federal Power Act, June 20, 1920, ch. 285, 41 Stat. would not be practical, then the Secretary may require that sufficient
1063, as amended, which is classified generally to chapter 12 (Sec. 791a et seq.) of funds be deposited by the user to provide his portion of such total
Title 16, Conservation, and which was amended by act Aug. 26, 1935, ch. 687, title
II, Sec. 213, 49 Stat. 847. For complete classification of this Act to the Code, see sec- maintenance or reconstruction. Deposits made to cover the mainte-
tion 791a of Title 16 and Tables. nance or reconstruction of roads are hereby made available until ex-
This Act, referred to in subsecs. (b)(1) and (c)(3)(C), is Pub. L. 94-579, Oct. 21, pended to cover the cost to the United States of accomplishing the pur-
1976, 90 Stat. 2743, as amended, known as the Federal Land Policy and Manage- poses for which deposited: Provided, That deposits received for work
ment Act of 1976. For complete classification of this Act to the Code, see Tables. on adjacent and overlapping areas may be combined when it is the
Transfer Of Functions most practicable and efficient manner of performing the work, and
The Federal Power Commission was terminated and its functions, personnel, cost thereof may be determined by estimates: And provided further,
property, funds, etc., were transferred to the Secretary of Energy (except for certain That unexpended balances upon accomplishment of the purpose for
functions which were transferred to the Federal Energy Regulatory Commission) by which deposited shall be transferred to miscellaneous receipts or re-
sections 7151(b), 7171(a), 7172(a), 7291, and 7293 of Title 42, The Public Health
and Welfare. funded.
Enforcement functions of Secretary or other official in Department of Agricul- (d) Fund for user fees for delayed payment to grantor
ture, insofar as they involve lands and programs under jurisdiction of that Depart- Whenever the agreement under which the United States has ob-
ment, related to compliance with land use permits for other associated land uses is-
sued under sections 1761, and 1763 to 1771 of this title, and such functions of Secre- tained for the use of, or in connection with, the public lands a right-of-
tary or other official in Department of the Interior related to compliance with land way or easement for a road or an existing road or the right to use an ex-
use permits for temporary use of public lands and other associated land uses, issued isting road provides for delayed payments to the Government’s gran-
under sections 1732, 1761, and 1763 to 1771 of this title, with respect to tor, any fees or other collections received by the Secretary for the use
pre-construction, construction, and initial operation of transportation systems for of the road may be placed in a fund to be available for making pay-
Canadian and Alaskan natural gas transferred to Federal Inspector, Office of Federal
Inspector for Alaska Natural Gas Transportation System, until first anniversary of ments to the grantor.
date of initial operation of Alaska Natural Gas Transportation System, see Reorg. (Pub. L. 94-579, title V, §502, Oct. 21, 1976, 90 Stat. 2777.)
Plan No. 1 of 1979, Secs. 102(e), (f), 203(a), 44 F.R. 33663, 33666, 93 Stat. 1373,
1376, effective July 1, 1979, set out in the Appendix to Title 5, Government Organi-
zation and Employees. Office of Federal Inspector for the Alaska Natural Gas Trans-
portation System abolished and functions and authority vested in Inspector trans-
ferred to Secretary of Energy by section 3012(b) of Pub. L. 102-486, set out as an
504
FLPMA §503 USCA11 Case:FEDERAL
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AND MANAGEMENT 43 U.S.C. §1764

§1763. [FLPMA §503] (d) Submission of plan of construction, operation, and


rehabilitation by new project applicants; plan requirements
Right-of-way corridors; criteria and procedures applicable
for designation The Secretary concerned prior to granting or issuing a right-of-way
pursuant to this subchapter for a new project which may have a signifi-
In order to minimize adverse environmental impacts and the prolif- cant impact on the environment, shall require the applicant to submit a
eration of separate rights-of-way, the utilization of rights-of-way in plan of construction, operation, and rehabilitation for such right-of-
common shall be required to the extent practical, and each right-of- way which shall comply with stipulations or with regulations issued
way or permit shall reserve to the Secretary concerned the right to by that Secretary, including the terms and conditions required under
grant additional rights-of-way or permits for compatible uses on or ad- section 1765 of this title.
jacent to rights-of-way granted pursuant to this Act. In designating
right-of-way corridors and in determining whether to require that (e) Regulatory requirements for terms and conditions; revision
rights-of-way be confined to them, the Secretary concerned shall take and applicability of regulations
into consideration national and State land use policies, environmental The Secretary concerned shall issue regulations with respect to the
quality, economic efficiency, national security, safety, and good engi- terms and conditions that will be included in rights-of-way pursuant to
neering and technological practices. The Secretary concerned shall is- section 1765 of this title. Such regulations shall be regularly revised as
sue regulations containing the criteria and procedures he will use in needed. Such regulations shall be applicable to every right-of-way
designating such corridors. Any existing transportation and utility granted or issued pursuant to this subchapter and to any subsequent re-
corridors may be designated as transportation and utility corridors newal thereof, and may be applicable to rights-of-way not granted or
pursuant to this subsection without further review. issued, but renewed pursuant to this subchapter.
(Pub. L. 94-579, title V, §503, Oct. 21, 1976, 90 Stat. 2778.) (f) Removal or use of mineral and vegetative materials
References In Text Mineral and vegetative materials, including timber, within or with-
This Act, referred to in text, is Pub. L. 94-579, Oct. 21, 1976, 90 Stat. 2743, as out a right-of-way, may be used or disposed of in connection with con-
amended, known as the Federal Land Policy and Management Act of 1976. For struction or other purposes only if authorization to remove or use such
complete classification of this Act to the Code, see Tables.
materials has been obtained pursuant to applicable laws or for emer-
Transfer Of Functions gency repair work necessary for those rights-of-way authorized under
Enforcement functions of Secretary or other official in Department of Agricul- section 1761(c) of this title.
ture, insofar as they involve lands and programs under jurisdiction of that Depart-
ment, related to compliance with land use permits for other associated land uses is- (g) Rental payments; amount, waiver, etc.
sued under sections 1761, and 1763 to 1771 of this title, and such functions of Secre- The holder of a right-of-way shall pay in advance the fair market
tary or other official in Department of the Interior related to compliance with land
use permits for temporary use of public lands and other associated land uses, issued value thereof, as determined by the Secretary granting, issuing, or re-
under sections 1732, 1761, and 1763 to 1771 of this title, with respect to newing such right-of-way. The Secretary concerned may require ei-
pre-construction, construction, and initial operation of transportation systems for ther annual payment or a payment covering more than one year at a
Canadian and Alaskan natural gas transferred to Federal Inspector, Office of Federal time except that private individuals may make at their option either
Inspector for Alaska Natural Gas Transportation System, until first anniversary of annual payments or payments covering more than one year if the an-
date of initial operation of Alaska Natural Gas Transportation System, see Reorg.
Plan No. 1 of 1979, Secs. 102(e), (f), 203(a), 44 F.R. 33663, 33666, 93 Stat. 1373, nual fee is greater than one hundred dollars. The Secretary concerned
1376, effective July 1, 1979, set out in the Appendix to Title 5, Government Organi- may waive rentals where a right-of-way is granted, issued or renewed
zation and Employees. Office of Federal Inspector for the Alaska Natural Gas Trans- in consideration of a right-of-way conveyed to the United States in
portation System abolished and functions and authority vested in Inspector trans- connection with a cooperative cost share program between the United
ferred to Secretary of Energy by section 3012(b) of Pub. L. 102-486, set out as an
Abolition of Office of Federal Inspector note under section 719e of Title 15, Com- States and the holder. The Secretary concerned may, by regulation or
merce and Trade. prior to promulgation of such regulations, as a condition of a right-of-
way, require an applicant for or holder of a right-of-way to reimburse
§1764. [FLPMA §504] the United States for all reasonable administrative and other costs in-
General requirements curred in processing an application for such right-of-way and in in-
spection and monitoring of construction, operation, and termination
(a) Boundary specifications; criteria; temporary use of of the facility pursuant to such right-of-way: Provided, however, That
additional lands the Secretary concerned need not secure reimbursement in any situa-
The Secretary concerned shall specify the boundaries of each tion where there is in existence a cooperative cost share right-of-way
right-of-way as precisely as is practical. Each right-of-way shall be program between the United States and the holder of a right-of-way.
limited to the ground which the Secretary concerned determines (1) Rights-of-way may be granted, issued, or renewed to a Federal, State,
will be occupied by facilities which constitute the project for which or local government or any agency or instrumentality thereof, to non-
the right-of-way is granted, issued, or renewed, (2) to be necessary for profit associations or nonprofit corporations which are not themselves
the operation or maintenance of the project, (3) to be necessary to pro- controlled or owned by profitmaking corporations or business enter-
tect the public safety, and (4) will do no unnecessary damage to the en- prises, or to a holder where he provides without or at reduced charges a
vironment. The Secretary concerned may authorize the temporary use valuable benefit to the public or to the programs of the Secretary con-
of such additional lands as he determines to be reasonably necessary cerned, or to a holder in connection with the authorized use or occu-
for the construction, operation, maintenance, or termination of the pancy of Federal land for which the United States is already receiving
project or a portion thereof, or for access thereto. compensation for such lesser charge, including free use as the Secre-
(b) Terms and conditions of right-of-way or permit tary concerned finds equitable and in the public interest. Such rights-
Each right-of-way or permit granted, issued, or renewed pursuant to of-way issued at less than fair market value are not assignable except
this section shall be limited to a reasonable term in light of all circum- with the approval of the Secretary issuing the right-of-way. The mon-
stances concerning the project. In determining the duration of a right- eys received for reimbursement of reasonable costs shall be deposited
of-way the Secretary concerned shall, among other things, take into with the Treasury in a special account and are hereby authorized to be
consideration the cost of the facility, its useful life, and any public pur- appropriated and made available until expended. Rights-of-way shall
pose it serves. The right-of-way shall specify whether it is or is not re- be granted, issued, or renewed, without rental fees, for electric or tele-
newable and the terms and conditions applicable to the renewal. phone facilities financing pursuant to the Rural Electrification Act of
(c) Applicability of regulations or stipulations 1936, as amended [7 U.S.C.A. §901 et seq.], determined without re-
Rights-of-way shall be granted, issued, or renewed pursuant to this gard to any application requirement under that act, or any extensions
subchapter under such regulations or stipulations, consistent with the from such facilities: Provided, That nothing in this sentence shall be
provisions of this subchapter or any other applicable law, and shall construed to affect the authority of the Secretary granting, issuing, or
also be subject to such terms and conditions as the Secretary con- renewing the right-of-way to require reimbursement of reasonable ad-
cerned may prescribe regarding extent, duration, survey, location, ministrative and other costs pursuant to the second sentence of this
construction, maintenance, transfer or assignment, and termination. subsection.
505
43 U.S.C. §1765 USCA11 Case: 20-12046 Date Filed:
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(h) Liability for damage or injury incurred by United States for vant factors; and (vi) otherwise protect the public interest in the lands
use and occupancy of rights-of-way; indemnification of United traversed by the right-of-way or adjacent thereto.
States; no-fault liability; amount of damages (Pub. L. 94-579, title V, §505, Oct. 21, 1976, 90 Stat. 2780.)
(1) The Secretary concerned shall promulgate regulations speci- References In Text
fying the extent to which holders of rights-of-way under this sub- This Act, referred to in par. (a), is Pub. L. 94-579, Oct. 21, 1976, 90 Stat. 2743, as
chapter shall be liable to the United States for damage or injury in- amended, known as the Federal Land Policy and Management Act of 1976. For
curred by the United States caused by the use and occupancy of the complete classification of this Act to the Code, see Tables.
rights-of-way. The regulations shall also specify the extent to which Transfer Of Functions
such holders shall indemnify or hold harmless the United States for See note set out under section 1763 of this title.
liabilities, damages, or claims caused by their use and occupancy of
the rights-of-way. §1766. [FLPMA §506]
(2) Any regulation or stipulation imposing liability without fault
Suspension or termination; grounds; procedures applicable
shall include a maximum limitation on damages commensurate
with the foreseeable risks or hazards presented. Any liability for Abandonment of a right-of-way or noncompliance with any provi-
damage or injury in excess of this amount shall be determined by or- sion of this subchapter condition of the right-of-way, or applicable
dinary rules of negligence. rule or regulation of the Secretary concerned may be grounds for sus-
pension or termination of the right-of-way if, after due notice to the
(i) Bond or security requirements
holder of the right-of-way and, and10 with respect to easements, an ap-
Where he deems it appropriate, the Secretary concerned may re- propriate administrative proceeding pursuant to section 554 of title 5,
quire a holder of a right-of-way to furnish a bond, or other security, sat- the Secretary concerned determines that any such ground exists and
isfactory to him to secure all or any of the obligations imposed by the that suspension or termination is justified. No administrative proceed-
terms and conditions of the right-of-way or by any rule or regulation of ing shall be required where the right-of-way by its terms provides that
the Secretary concerned. it terminates on the occurrence of a fixed or agreed-upon condition,
(j) Criteria for grant, issue, or renewal of right-of-way event, or time. If the Secretary concerned determines that an immedi-
The Secretary concerned shall grant, issue, or renew a right-of-way ate temporary suspension of activities within a right-of-way for viola-
under this subchapter only when he is satisfied that the applicant has tion of its terms and conditions is necessary to protect public health or
the technical and financial capability to construct the project for which safety or the environment, he may abate such activities prior to an ad-
the right-of-way is requested, and in accord with the requirements of ministrative proceeding. Prior to commencing any proceeding to sus-
this subchapter. pend or terminate a right-of-way the Secretary concerned shall give
(Pub. L. 94-579, title V, §504, Oct. 21, 1976, 90 Stat. 2778; Pub. L. 98-300, written notice to the holder of the grounds for such action and shall
May 25, 1984, 98 Stat. 215; Pub. L. 99-545, §2, Oct. 27, 1986, 100 Stat. 3048; give the holder a reasonable time to resume use of the right-of-way or
Pub. L. 99-545, §2, Oct. 27, 1986, 100 Stat. 3048; Pub. L. 104-333, Div. I, title to comply with this subchapter condition, rule, or regulation as the
X, §1032(a), Nov. 12, 1996, 110 Stat. 4239.) case may be. Failure of the holder of the right-of-way to use the right-
References In Text of-way for the purpose for which it was granted, issued, or renewed,
The Rural Electrification Act of 1936, referred to in subsec. (g), is act May 20, for any continuous five-year period, shall constitute a rebuttable pre-
1936, ch. 432, 49 Stat. 1363, as amended, which is classified generally to chapter 31 sumption of abandonment of the right-of-way except that where the
(Sec. 901 et seq.) of Title 7, Agriculture. For complete classification of this Act to the failure of the holder to use the right-of-way for the purpose for which it
Code, see section 901 of Title 7 and Tables. was granted, issued, or renewed for any continuous five-year period is
Effective Date of 1996 Amendments due to circumstances not within the holder’s control, the Secretary
Section 1032(b) of title X of Div. I of Pub. L. 104-333 provided that: “The amend- concerned is not required to commence proceedings to suspend or ter-
ment made by subsection (a) [amending subsec. (g) of this section] shall apply with minate the right-of-way.
respect to rights-of-way leases held on or after the date of enactment of this Act (Pub. L. 94-579, title V, §506, Oct. 21, 1976, 90 Stat. 2780.)
[Nov. 12, 1996].”
Transfer Of Functions
Transfer Of Functions
See note set out under section 1763 of this title.
See note set out under section 1763 of this title.
§1767. [FLPMA §507]
§1765. [FLPMA §505] Rights-of-way for Federal departments and agencies
Terms and conditions
(a) The Secretary concerned may provide under applicable provi-
Each right-of-way shall contain— sions of this subchapter for the use of any department or agency of the
(a) terms and conditions which will (i) carry out the purposes of this United States a right-of-way over, upon, under or through the land ad-
Act and rules and regulations issued thereunder; (ii) minimize damage ministered by him, subject to such terms and conditions as he may im-
to scenic and esthetic values and fish and wildlife habitat and other- pose.
wise protect the environment; (iii) require compliance with applicable (b) Where a right-of-way has been reserved for the use of any de-
air and water quality standards established by or pursuant to applica- partment or agency of the United States, the Secretary shall take no ac-
ble Federal or State law; and (iv) require compliance with State stan- tion to terminate, or otherwise limit, that use without the consent of the
dards for public health and safety, environmental protection, and head of such department or agency.
siting, construction, operation, and maintenance of or for rights-of- (Pub. L. 94-579, title V, §507, Oct. 21, 1976, 90 Stat. 2781.)
way for similar purposes if those standards are more stringent than ap-
Transfer Of Functions
plicable Federal standards; and
See note set out under section 1763 of this title.
(b) such terms and conditions as the Secretary concerned deems
necessary to (i) protect Federal property and economic interests; (ii) §1768. [FLPMA §508]
manage efficiently the lands which are subject to the right-of-way or
adjacent thereto and protect the other lawful users of the lands adja- Conveyance of lands covered by right-of-way; terms and
cent to or traversed by such right-of-way; (iii) protect lives and prop- conditions
erty; (iv) protect the interests of individuals living in the general area If under applicable law the Secretary concerned decides to transfer
traversed by the right-of-way who rely on the fish, wildlife, and other out of Federal ownership any lands covered in whole or in part by a
biotic resources of the area for subsistence purposes; (v) require loca- right-of-way, including a right-of-way granted under the Act of No-
tion of the right-of-way along a route that will cause least damage to vember 16, 1973 (87 Stat. 576; 30 U.S.C. 185), the lands may be con-
the environment, taking into consideration feasibility and other rele- veyed subject to the right-of-way; however, if the Secretary concerned

10. So in original.

506
FLPMA §509 USCA11 Case:FEDERAL
20-12046 Date Filed:
LAND POLICY 04/22/2021ACT Page: 54 of 81
AND MANAGEMENT 43 U.S.C. §1771

determines that retention of Federal control over the right-of-way is ant to section 1761(b) of this title or impose any other condition con-
necessary to assure that the purposes of this subchapter will be carried templated by this Act that is contrary to present practices of that Secre-
out, the terms and conditions of the right-of-way complied with, or the tary under sections 532 to 538 of title 16. Any pending application for
lands protected, he shall (a) reserve to the United States that portion of a right-of-way under any other law on the effective date of this section
the lands which lies within the boundaries of the right-of-way, or (b) shall be considered as an application under this subchapter. The Secre-
convey the lands, including that portion within the boundaries of the tary concerned may require the applicant to submit any additional in-
right-of-way, subject to the right-of-way and reserving to the United formation he deems necessary to comply with the requirements of this
States the right to enforce all or any of the terms and conditions of the subchapter.
right-of-way, including the right to renew it or extend it upon its termi- (b) Highway use
nation and to collect rents. Nothing in this subchapter shall be construed to preclude the use of
(Pub. L. 94-579, title V, §508, Oct. 21, 1976, 90 Stat. 2781.) lands covered by this subchapter for highway purposes pursuant to
References In Text sections 107 and 317 of title 23.
Act of November 16, 1973, referred to in text, is Pub. L. 93-153, Nov. 16, 1973, 87 (c) Application of antitrust laws
Stat. 576. For complete classification of this Act to the Code, see Tables. (1) Nothing in this subchapter shall be construed as exempting
Transfer Of Functions any holder of a right-of-way issued under this subchapter from any
See note set out under section 1763 of this title. provision of the antitrust laws of the United States.
(2) For the purposes of this subsection, the term “antitrust laws”
§1769. [FLPMA §509] includes the Act of July 2, 1890 (26 Stat. 15 U.S.C. 1 et seq.); the
Existing right-of-way or right-of-use unaffected; exceptions; Act of October 15, 1914 (38 Stat. 730, 15 U.S.C. 12 et seq.); the
rights-of-way for railroad and appurtenant communication Federal Trade Commission Act (38 Stat. 717; 15 U.S.C. 41 et seq.);
facilities; applicability of existing terms and conditions and sections 73 and 74 of the Act of August 27, 1894 [15 U.S.C. 8,
9].
(a) Nothing in this subchapter shall have the effect of terminating
(Pub. L. 94-579, title V, §510, Oct. 21, 1976, 90 Stat. 2782.)
any right-of-way or right-of-use heretofore issued, granted, or permit-
ted. However, with the consent of the holder thereof, the Secretary References In Text
concerned may cancel such a right-of-way or right-of-use and in its This Act, referred to in subsec. (a), is Pub. L. 94-579, Oct. 21, 1976, 90 Stat. 2743,
stead issue a right-of-way pursuant to the provisions of this subchap- as amended, known as the Federal Land Policy and Management Act of 1976. For
complete classification of this Act to the Code, see Tables.
ter. The effective date of this section, referred to in subsec. (a), probably means the
(b) When the Secretary concerned issues a right-of-way under this date of enactment of this section by Pub. L. 94-579, which was approved Oct. 21,
subchapter for a railroad and appurtenant communication facilities in 1976.
connection with a realinement of a railroad on lands under his jurisdic- Act of July 2, 1890, referred to in subsec. (c)(2), is act July 2, 1890, ch. 647, 26
tion by virtue of a right-of-way granted by the United States, he may, Stat. 209, as amended, known as the Sherman Act, which is classified to sections 1 to
7 of Title 15, Commerce and Trade. For complete classification of this Act to the
when he considers it to be in the public interest and the lands involved Code, see Short Title note set out under section 1 of Title 15 and Tables.
are not within an incorporated community and are of approximately Act of October 15, 1914, referred to in subsec. (c)(2), is act Oct. 15, 1914, ch. 323,
equal value, notwithstanding the provisions of this subchapter, pro- 38 Stat. 730, as amended, known as the Clayton Act, which is classified generally to
vide in the new right-of-way the same terms and conditions as applied sections 12, 13, 14 to 19, 21, and 22 to 27 of Title 15, and sections 52 and 53 of Title
29, Labor. For further details and complete classification of this Act to the Code, see
to the portion of the existing right-of-way relinquished to the United References in Text note set out under section 12 of Title 15 and Tables.
States with respect to the payment of annual rental, duration of the The Federal Trade Commission Act, referred to in subsec. (c)(2), is act Sept. 26,
right-of-way, and the nature of the interest in lands granted. The Secre- 1914, ch. 311, 38 Stat. 717, as amended, which is classified generally to subchapter I
tary concerned or his delegate shall take final action upon all applica- (Sec. 41 et seq.) of chapter 2 of Title 15. For complete classification of this Act to the
tions for the grant, issue, or renewal of rights-of-way under subsection Code, see section 58 of Title 15 and Tables.
Sections 73 and 74 of the Act of August 27, 1894, referred to in subsec. (c), are
(b) of this section no later than six months after receipt from the appli- sections 73 and 74 of act Aug. 27, 1894, ch. 349, 28 Stat. 570, which are classified to
cant of all information required from the applicant by this subchapter. sections 8 and 9 of Title 15.
(Pub. L. 94-579, title V, §509, Oct. 21, 1976, 90 Stat. 2781.) Transfer Of Functions
Transfer Of Functions See note set out under section 1763 of this title.
See note set out under section 1763 of this title.
§1771. [FLPMA §511]
§1770. [FLPMA §510] Coordination of applications
Applicability of provisions to other Federal laws Applicants before Federal departments and agencies other than the
(a) Right-of-way Department of the Interior or Agriculture seeking a license, certifi-
Effective on and after October 21, 1976, no right-of-way for the cate, or other authority for a project which involve a right-of-way
purposes listed in this subchapter shall be granted, issued, or renewed over, upon, under, or through public land or National Forest System
over, upon, under, or through such lands except under and subject to lands must simultaneously apply to the Secretary concerned for the
the provisions, limitations, and conditions of this subchapter: Pro- appropriate authority to use public lands or National Forest System
vided, That nothing in this subchapter shall be construed as affecting lands and submit to the Secretary concerned all information furnished
or modifying the provisions of sections 532 to 538 of title 16 and in the to the other Federal department or agency.
event of conflict with, or inconsistency between, this subchapter and (Pub. L. 94-579, title V, §511, Oct. 21, 1976, 90 Stat. 2782.)
sections 532 to 538 of title 16, the latter shall prevail: Provided further, Transfer Of Functions
That nothing in this Act should be construed as making it mandatory See note set out under section 1763 of this title.
that, with respect to forest roads, the Secretary of Agriculture limit
rights-of-way grants or their term of years or require disclosure pursu-

507
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Addendum A-3
36 C.F.R. 251.50 - 251.65
USCA11 Case: 20-12046 Date Filed: 04/22/2021 Page: 56 of 81

Forest Service, USDA § 251.50

DESIGNATION OF AREAS and employees of the city of Peters-


burg; and
§ 251.23 Experimental areas and re- (3) Public recreational use of the
search natural areas. Raven’s Roost Trail for access to and
The Chief of the Forest Service shall from the Raven’s Roost public recre-
establish and permanently record a se- ation cabin and the Alpine Recreation
ries of areas on National Forest land to Area.
be known as experimental forests or (c) Any person who wishes to enter
experimental ranges, sufficient in num- upon the lands within the watershed
ber and size to provide adequately for for purposes other than those listed in
the research necessary to serve as a paragraph (b) must obtain a permit
basis for the management of forest and that has been signed by the appropriate
range land in each forest region. Also, city official and countersigned by the
when appropriate, the Chief shall es- District Ranger.
tablish a series of research natural (d) Unauthorized entrance upon lands
areas, sufficient in number and size to within the watershed is subject to pun-
illustrate adequately or typify for re- ishment as provided in 36 CFR 261.1b.
search or educational purposes, the im- (e) The Forest Supervisor of the
portant forest and range types in each Stikine Area of the Tongass National
forest region, as well as other plant Forest may authorize the removal of
communities that have special or timber from the watershed under the
unique characteristics of scientific in- regulations governing disposal of Na-
terest and importance. Research Nat- tional Forest timber (36 CFR part 223).
ural Areas will be retained in a virgin In any removal of timber from the wa-
or unmodified condition except where tershed, the Forest Supervisor shall
measures are required to maintain a provide adequate safeguards for the
plant community which the area is in- protection of the Petersburg municipal
tended to represent. Within areas des- water supply.
ignated by this regulation, occupancy
under a special-use permit shall not be [53 FR 26595, July 14, 1988]
allowed, nor the construction of perma-
nent improvements permitted except Subpart B—Special Uses
improvements required in connection
with their experimental use, unless au- AUTHORITY: 16 U.S.C. 460l–6a, 460l–6d, 472,
thorized by the Chief of the Forest 497b, 497c, 551, 580d, 1134, 3210; 30 U.S.C. 185; 43
Service. U.S.C. 1740, 1761–1771.

[31 FR 5072, Mar. 29, 1966] SOURCE: 45 FR 38327, June 6, 1980, unless
otherwise noted.
PETERSBURG WATERSHED
§ 251.50 Scope.
§ 251.35 Petersburg watershed. (a) All uses of National Forest Sys-
(a) Except as authorized in para- tem lands, improvements, and re-
graphs (b) and (c), access to lands with- sources, except those authorized by the
in the Petersburg watershed, Tongass regulations governing sharing use of
National Forest, as described in the roads (§ 212.9); grazing and livestock use
Act of October 17, 1940 (54 Stat. 1197), is (part 222); the sale and disposal of tim-
prohibited. ber and special forest products, such as
(b) Access to lands within the Peters- greens, mushrooms, and medicinal
burg watershed is hereby authorized, plants (part 223); and minerals (part
without further written approval, for 228) are designated ‘‘special uses.’’ Be-
the following routine purposes: fore conducting a special use, individ-
(1) The discharge of official duties re- uals or entities must submit a proposal
lated to management of the Tongass to the authorized officer and must ob-
National Forest by Federal employees, tain a special use authorization from
holders of Forest Service contracts, or the authorized officer, unless that re-
Forest Service agents; quirement is waived by paragraphs (c)
(2) The operation, maintenance, and through (e)(3) of this section.
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improvement of the municipal water (b) Nothing in this section prohibits


system by Federal and State officials the temporary occupancy of National

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§ 251.51 36 CFR Ch. II (7–1–19 Edition)

Forest System lands without a special or by a regulation issued under § 261.70


use authorization when necessary for of this chapter.
the protection of life and property in (e) For proposed uses other than a
emergencies, if a special use authoriza- noncommercial group use, a special use
tion is applied for and obtained at the authorization is not required if, based
earliest opportunity, unless waived upon review of a proposal, the author-
pursuant to paragraphs (c) through ized officer determines that the pro-
(e)(3) of this section. The authorized of- posed use has one or more of the fol-
ficer may, pursuant to § 251.56 of this lowing characteristics:
subpart, impose in that authorization (1) The proposed use will have such
such terms and conditions as are nominal effects on National Forest
deemed necessary or appropriate and System lands, resources, or programs
may require changes to the temporary that it is not necessary to establish
occupancy to conform to those terms terms and conditions in a special use
and conditions. Those temporarily oc- authorization to protect National For-
cupying National Forest System lands est System lands and resources or to
without a special use authorization as- avoid conflict with National Forest
sume liability, and must indemnify the System programs or operations;
United States, for all injury, loss, or (2) The proposed use is regulated by a
State agency or another Federal agen-
damage arising in connection with the
cy in a manner that is adequate to pro-
temporary occupancy.
tect National Forest System lands and
(c) A special use authorization is not resources and to avoid conflict with
required for noncommercial rec- National Forest System programs or
reational activities, such as camping, operations; or
picnicking, hiking, fishing, boating, (3) The proposed use is not situated
hunting, and horseback riding, or for in a congressionally designated wilder-
noncommercial activities involving the ness area, and is a routine operation or
expression of views, such as assemblies, maintenance activity within the scope
meetings, demonstrations, and parades, of a statutory right-of-way for a high-
unless: way pursuant to R.S. 2477 (43 U.S.C.
(1) The proposed use is a noncommer- 932, repealed Oct. 21, 1976) or for a ditch
cial group use as defined in § 251.51 of or canal pursuant to R.S. 2339 (43
this subpart; U.S.C. 661, as amended), or the pro-
(2) The proposed use is still photog- posed use is a routine operation or
raphy as defined in § 251.51 of this sub- maintenance activity within the ex-
part; or press scope of a documented linear
(3) Authorization of that use is re- right-of-way.
quired by an order issued under § 261.50 [69 FR 41964, July 13, 2004]
or by a regulation issued under § 261.70
of this chapter. § 251.51 Definitions.
(d) Travel on any National Forest Applicant—any individual or entity
System road shall comply with all Fed- that applies for a special use authoriza-
eral and State laws governing the road tion.
to be used and does not require a spe- Authorized officer—any employee of
cial use authorization, unless: the Forest Service to whom has been
(1) The travel is for the purpose of en- delegated the authority to perform the
gaging in a noncommercial group use, duties described in this part.
outfitting or guiding, a recreation Chief—the Chief of the Forest Serv-
event, commercial filming, or still pho- ice.
tography, as defined in § 251.51 of this Commercial filming—use of motion pic-
subpart, or for a landowner’s ingress or ture, videotaping, sound recording, or
egress across National Forest System any other moving image or audio re-
lands that requires travel on a Na- cording equipment on National Forest
tional Forest System road that is not System lands that involves the adver-
authorized for general public use under tisement of a product or service, the
§ 251.110(d) of this part; or creation of a product for sale, or the
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(2) Authorization of that use is re- use of models, actors, sets, or props,
quired by an order issued under § 261.50 but not including activities associated

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Forest Service, USDA § 251.51

with broadcasting breaking news, as 50 hours of agency time to process an


defined in FSH 2709.11, chapter 40. application for a special use authoriza-
Commercial use or activity—any use or tion (processing category 6 and, in cer-
activity on National Forest System tain situations, processing category 5)
lands (a) where an entry or participa- or more than 50 hours of agency time
tion fee is charged, or (b) where the pri- to monitor compliance with the terms
mary purpose is the sale of a good or and conditions of an authorization
service, and in either case, regardless (monitoring category 6 and, in certain
of whether the use or activity is in- situations, monitoring category 5).
tended to produce a profit. Major categories usually require docu-
Easement—a type of special use au- mentation of environmental and asso-
thorization (usually granted for linear ciated impacts in an environmental as-
rights-of-way) that is utilized in those sessment and may require an environ-
situations where a conveyance of a lim- mental impact statement.
ited and transferable interest in Na- Minor category—A processing or mon-
tional Forest System land is necessary itoring category requiring 50 hours or
or desirable to serve or facilitate au- less of agency time to process an appli-
thorized long-term uses, and that may cation for a special use authorization
be compensable according to its terms. (processing categories 1 through 4 and,
Forest road or trail. A road or trail in certain situations, processing cat-
wholly or partly within or adjacent to egory 5) or 50 hours or less of agency
and serving the National Forest Sys- time to monitor compliance with the
tem that the Forest Service determines terms and conditions of an authoriza-
is necessary for the protection, admin- tion (monitoring categories 1 through 4
istration, and utilization of the Na- and, in certain situations, monitoring
tional Forest System and the use and category 5). Minor categories may re-
development of its resources. quire documentation of environmental
Group use—an activity conducted on and associated impacts in an environ-
National Forest System lands that in- mental assessment.
volves a group of 75 or more people, ei- Monitoring—Actions needed to ensure
ther as participants or spectators. compliance with the terms and condi-
Guiding—providing services or assist- tions in a special use authorization.
ance (such as supervision, protection, National Forest System land—all lands,
education, training, packing, touring, waters, or interests therein adminis-
subsistence, transporting people, or in- tered by the Forest Service.
terpretation) for pecuniary remunera- National Forest System road. A forest
tion or other gain to individuals or road other than a road which has been
groups on National Forest System authorized by a legally documented
lands. right-of-way held by a State, county,
Holder—an individual or entity that or other local public road authority.
holds a valid special use authorization. NEPA procedures—the rules, policies,
Lease—a type of special use author- and procedures governing agency com-
ization (usually granted for uses other pliance with the National Environ-
than linear rights-of-way) that is used mental Policy Act set forth in 50 CFR
when substantial capital investment is parts 1500–1508, 7 CFR part 1b, Forest
required and when conveyance of a con- Service Manual Chapter 1950, and For-
ditional and transferable interest in est Service Handbook 1909.15.
National Forest System lands is nec- Noncommercial use or activity—any use
essary or desirable to serve or facili- or activity that does not involve a
tate authorized long-term uses, and commercial use or activity as defined
that may be revocable and compen- in this section.
sable according to its terms. Outfitting—renting on or delivering
Linear right-of-way—a right-of-way to National Forest System lands for
for a linear facility, such as a road, pecuniary remuneration or other gain
trail, pipeline, electronic transmission any saddle or pack animal, vehicle,
line, fence, water transmission facility, boat, camping gear, or similar supplies
or fiber optic cable. or equipment.
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Major category—A processing or mon- Permit—a special use authorization


itoring category requiring more than which provides permission, without

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§ 251.51 36 CFR Ch. II (7–1–19 Edition)

conveying an interest in land, to oc- and Nordic ski area passes and lift
cupy and use National Forest System tickets, revenue from alpine, Nordic,
land or facilities for specified purposes, and other snow sport instruction, and
and which is both revocable and ter- gross revenue from ancillary facilities
minable. that support alpine or Nordic skiing
Recreation event—a recreational ac- and other snow sports.
tivity conducted on National Forest Sound business management prin-
System lands for which an entry or ciples—a phrase that refers to accepted
participation fee is charged, such as
industry practices or methods of estab-
animal, vehicle, or boat races; dog
lishing fees and charges that are used
trials; fishing contests; rodeos; adven-
ture games; and fairs. or applied by the Forest Service to help
Recreation Residence Lot—a parcel of establish the appropriate charge for a
National Forest System land on which special use. Examples of such practices
a holder is authorized to build, use, oc- and methods include, but are not lim-
cupy, and maintain a recreation resi- ited to, appraisals, fee schedules, com-
dence and related improvements. A petitive bidding, negotiation of fees,
recreation residence lot is considered and application of other economic fac-
to be in its natural, native state at the tors, such as cost efficiency, supply and
time when the Forest Service first per- demand, and administrative costs.
mitted its use for a recreation resi- Special use authorization—a written
dence. A recreation residence lot is not permit, term permit, lease, or ease-
necessarily confined to the platted ment that authorizes use or occupancy
boundaries shown on a tract map or of National Forest System lands and
permit area map. A recreation resi- specifies the terms and conditions
dence lot includes the physical area of under which the use or occupancy may
all National Forest System land being
occur.
used or occupied by a recreation resi-
dence permit holder, including, but not Still photography—use of still photo-
limited to, land being occupied by an- graphic equipment on National Forest
cillary facilities and uses owned, oper- System lands that takes place at a lo-
ated, or maintained by the holder, such cation where members of the public
as septic systems, water systems, boat generally are not allowed or where ad-
houses and docks, major vegetative ditional administrative costs are like-
modifications, and so forth. ly, or uses models, sets, or props that
Revocation—the cessation, in whole are not a part of the site’s natural or
or in part, of a special use authoriza- cultural resources or administrative fa-
tion by action of an authorized officer cilities.
before the end of the specified period of Suspension—a temporary revocation
use or occupancy for reasons set forth of a special use authorization.
in § 251.60(a)(1)(i), (a)(2)(i), (g), and (h) Termination—the cessation of a spe-
of this subpart. cial use authorization by operation of
Right-of-way—land authorized to be
law or by operation of a fixed or
used or occupied for the construction,
agreed-upon condition, event, or time
operation, maintenance and termi-
nation of a project or facility passing as specified in the authorization, which
over, upon, under or through such land. does not require a decision by an au-
Secretary—the Secretary of Agri- thorized officer to take effect, such as
culture. expiration of the authorized term;
Ski area—a site and associated facili- change in ownership or control of the
ties that has been primarily developed authorized improvements; or change in
for alpine or Nordic skiing and other ownership or control of the holder of
snow sports, but may also include, in the authorization.
appropriate circumstances, facilities Term permit—a special use authoriza-
necessary for other seasonal or year- tion to occupy and use National Forest
round natural resource-based recre- System land, other than rights-of-way
ation activities, provided that a pre-
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ponderance of revenue generated by the


ski area derives from the sale of alpine

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Forest Service, USDA § 251.53

under § 251.53(l) of this part, for a speci- acres for (i) hotels, resorts, and other
fied period which is both revocable and structures and facilities for recreation,
compensable according to its terms. public convenience, or safety; (ii) in-
dustrial or commercial purposes, and
[45 FR 38327, June 6, 1980, as amended at 49
FR 25449, June 21, 1984; 53 FR 16550, May 10, (iii) education or public activities; and
1988; 54 FR 22593, May 25, 1989; 60 FR 45293, (2) for not over 5 acres for summer
Aug. 30, 1995; 60 FR 54409, Oct. 23, 1995; 63 FR homes and stores;
65964, Nov. 30, 1998; 69 FR 41965, July 13, 2004; (e) Permits or easements for a right-
70 FR 68290, Nov. 9, 2005; 71 FR 8913, Feb. 21, of-way for a pipeline for the transpor-
2006; 71 FR 16621, Apr. 3, 2006; 74 FR 68381, tation of oil, gas, or oil or gas prod-
Dec. 24, 2009; 78 FR 33725, June 5, 2013; 78 FR ucts, where no Federal land besides Na-
38843, June 28, 2013]
tional Forest System lands is required,
§ 251.52 Delegation of authority. and permits for the temporary use of
additional National Forest System
Special use authorizations shall be lands necessary for construction, oper-
issued, granted, amended, renewed, sus- ation, maintenance, or termination of
pended, terminated, or revoked by the a pipeline or to protect the natural en-
Chief, or through delegation, by the vironment or public safety under sec-
Regional Forester, Forest Supervisor, tion 28 of the Mineral Leasing Act, 41
District Ranger or other forest officer, Stat. 449, as amended (30 U.S.C 185);
and shall be in such form and contain (f) Permits, term permits, and ease-
such terms, stipulations, conditions, ments in the National Grasslands and
and agreements as may be required by other lands acquired or administered
the regulations of the Secretary and under title III, Act of July 22, 1937, 50
the instructions of the Chief (7 CFR Stat. 525, as amended, (7 U.S.C. 1011(d));
2.60; 36 CFR part 200, subpart B). (g) Permits under section 7 of the Act
of April 24, 1950, 64 Stat. 84 (16 U.S.C.
§ 251.53 Authorities. 580d) for periods not over 30 years for
Subject to any limitations contained the use of structures or improvements
in applicable statutes, the Chief of the under the administrative control of the
Forest Service, or other Agency offi- Forest Service and land used in connec-
cial to whom such authority is dele- tion therewith;
gated, may issue special use authoriza- (h) Permits, term permits, leases, or
tions for National Forest System land easements as authorized by the Act of
under the authorities cited and for the September 3, 1954, 68 Stat. 1146 (43
types of use specified in this section as U.S.C. 931c, 931d), to States, counties,
follows: cities, towns, townships, municipal
(a) Permits governing occupancy and corporations, or other public agencies
use, including group events and dis- for periods not over 30 years, at prices
tribution of noncommercial printed representing the fair market value,
materials, under the act of June 4, 1897, fixed by the Chief, through appraisal
30 Stat. 35 (16 U.S.C. 551); for the purpose of constructing and
(b) Leases under the Act of February maintaining on such lands public build-
28, 1899, 30 Stat. 908 (16 U.S.C. 495) for ings or other public works;
public sanitariums or hotels near or (i) Permits under the Wilderness Act
adjacent to mineral springs; of September 3, 1964, 78 Stat. 890 (16
(c) Permits under the Act of June 8, U.S.C. 1131–1136) for temporary struc-
1906, 34 Stat. 225 (16 U.S.C. 431, et seq.), tures and commercial services and for
for the examination of ruins, the exca- access to valid mining claims or other
vation of archaeological sites, and the valid occupancies and to surrounded
gathering of objects of antiquity in State or private land within designated
conformity with the rules and regula- wilderness (see part 293 of this chap-
tions prescribed by the Secretaries of ter);
the Interior, Agriculture, and War, De- (j) Temporary or permanent ease-
cember 28, 1906 (43 CFR part 3); ments under the Act of October 13, 1964,
(d) Term permits under the Act of 78 Stat. 1089 (16 U.S.C. 532–538) for road
March 4, 1915, 38 Stat. 1101, as amended, rights-of-way over lands and interests
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70 Stat. 708 (16 U.S.C. 497) for periods in land administered by the Forest
not over 30 years and (1) for not over 80 Service (see § 212.10 of this chapter);

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§ 251.54 36 CFR Ch. II (7–1–19 Edition)

(k) Special recreation permits issued (8) Any Federal department or agen-
under section 803(h) of the Federal cy for pipeline purposes for the trans-
Lands Recreation Enhancement Act (16 portation of oil, natural gas, synthetic
U.S.C. 6802(h)), for specialized recre- liquid or gaseous fuels, or any product
ation uses of National Forest System produced therefrom;
lands, such as group activities, recre- (m) Permits under the Archae-
ation events, and motorized rec- ological Resources Protection Act of
reational vehicle use. 1979, 93 Stat. 721 (16 U.S.C. 470aa).
(l) Permits, leases and easements (n) Operation of nordic and alpine ski
under the Federal Land Policy and areas and facilities for up to 40 years
Management Act of 1976, 90 Stat. 2776 and encompassing such acreage as the
(43 U.S.C. 1761–1771) for rights-of-way Forest Officer determines sufficient
for: and appropriate as authorized by the
(1) Reservoirs, canals, ditches, National Forest Ski Area Permit Act
flumes, laterals, pipes, pipelines, tun- of 1986 (16 U.S.C. 497b).
nels, and other facilities and systems [45 FR 38327, June 6, 1980; 45 FR 43167, June
for the impoundment, storage, trans- 26, 1980, as amended at 49 FR 25449, June 21,
portation, or distribution of water; 1984; 53 FR 16550, May 10, 1988; 54 FR 22594,
(2) Pipelines and other systems for May 25, 1989; 70 FR 70498, Nov. 22, 2005; 74 FR
the transportation or distribution of 68381, Dec. 24, 2009]
liquids and gases, other than water and
other than oil, natural gas, synthetic § 251.54 Proposal and application re-
liquid or gaseous fuels, or any refined quirements and procedures.
product produced therefrom, and for (a) Early notice. When an individual
storage and terminal facilities in con- or entity proposes to occupy and use
nection therewith; National Forest System lands, the pro-
(3) Pipelines, slurry and emulsion ponent is required to contact the For-
systems, and conveyor belts for trans- est Service office(s) responsible for the
portation and distribution of solid ma- management of the affected land as
terials, and facilities for the storage of early as possible in advance of the pro-
such materials in connection there- posed use.
with; (b) Filing proposals. Proposals for spe-
(4) Systems and related facilities for cial uses must be filed in writing with
generation, transmission, and distribu- or presented orally to the District
tion of electric energy, except that the Ranger or Forest Supervisor having ju-
applicant, in addition to obtaining a risdiction over the affected land (§ 200.2
Forest Service special use authoriza- of this chapter), except as follows:
tion, shall also comply with all appli- (1) Proposals for projects on lands
cable requirements of the Federal En- under the jurisdiction of two or more
ergy Regulatory Commission under the administrative units of the Forest
Federal Power Act of 1935, as amended, Service may be filed at the most con-
49 Stat. 838 (16 U.S.C. 791a, et seq.); venient Forest Service office having ju-
(5) Systems for transmission or re- risdiction over part of the project, and
ception of radio, television, telephone, the proponent will be notified where to
telegraph, and other electronic signals direct subsequent communications;
and other means of communication; (2) Proposals for cost-share and other
(6) Roads, trails, highways, railroads, road easements to be issued under
canals, tunnels, tramways, airways, § 251.53(j) must be filed in accordance
livestock driveways, or other means of with regulations in § 212.10(c) and (d) of
transportation except where such fa- this chapter; and
cilities are constructed and maintained (3) Proposals for oil and gas pipeline
in connection with commercial recre- rights-of-way crossing Federal lands
ation facilities; under the jurisdiction of two or more
(7) Such other necessary transpor- Federal agencies must be filed with the
tation or other systems or facilities State Office, Bureau of Land Manage-
which are in the public interest and ment, pursuant to regulations at 43
which require rights-of-way over, upon, CFR part 2882.
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under, or through National Forest Sys- (c) Rights of proponents. A proposal to


tem lands; and obtain a special use authorization does

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Forest Service, USDA § 251.54

not grant any right or privilege to use (1) Evidence of incorporation and its
National Forest System lands. Rights current good standing;
or privileges to occupy and use Na- (2) If reasonably obtainable by the
tional Forest System lands under this proponent, the name and address of
subpart are conveyed only through each shareholder owning three percent
issuance of a special use authorization. or more of the shares, together with
(d) Proposal content—(1) Proponent the number and percentage of any class
identification. Any proponent for a spe- of voting shares of the entity which
cial use authorization must provide the such shareholder is authorized to vote;
proponent’s name and mailing address, (3) The name and address of each af-
and, if the proponent is not an indi- filiate of the entity;
vidual, the name and address of the (4) In the case of an affiliate which is
proponent’s agent who is authorized to controlled by the entity, the number of
receive notice of actions pertaining to shares and the percentage of any class
the proposal. of voting stock of the affiliate that the
(2) Required information—(i) Non- entity owns either directly or indi-
commercial group uses. Paragraphs (d)(3) rectly; or
through (d)(5) of this section do not (5) In the case of an affiliate which
apply to proposals for noncommercial controls that entity, the number of
group uses. A proponent for non- shares and the percentage of any class
commercial group uses shall provide of voting stock of that entity owned,
the following: either directly or indirectly by the af-
(A) A description of the proposed ac- filiate; or
tivity; (E) If the proponent is a partnership,
(B) The location and a description of association, or other unincorporated
the National Forest System lands and entity: a certified copy of the partner-
facilities the proponent would like to ship agreement or other similar docu-
use; ment, if any, creating the entity, or a
(C) The estimated number of partici- certificate of good standing under the
pants and spectators; laws of the State.
(D) The starting and ending time and (3) Technical and financial capability.
date of the proposed activity; and The proponent is required to provide
(E) The name of the person or per- sufficient evidence to satisfy the au-
sons 21 years of age or older who will thorized officer that the proponent has,
sign a special use authorization on be- or prior to commencement of construc-
half of the proponent. tion will have, the technical and finan-
(ii) All other special uses. At a min- cial capability to construct, operate,
imum, proposals for special uses other maintain, and terminate the project
than noncommercial group uses must for which an authorization is re-
include the information contained in quested, and the proponent is other-
paragraphs (d)(3) through (d)(5) of this wise acceptable.
section. In addition, if requested by an (4) Project description. Except for re-
authorized officer, a proponent in one quests for planning permits for a major
of the following categories must fur- development, a proponent must provide
nish the information specified for that a project description, including maps
category: and appropriate resource information,
(A) If the proponent is a State or in sufficient detail to enable the au-
local government agency: a copy of the thorized officer to determine the feasi-
authorization under which the proposal bility of a proposed project or activity,
is made; any benefits to be provided to the pub-
(B) If the proponent is a public cor- lic, the safety of the proposal, the
poration: the statute or other author- lands to be occupied or used, the terms
ity under which it was organized; and conditions to be included, and the
(C) If the proponent is a Federal Gov- proposal’s compliance with applicable
ernment agency: the title of the agency laws, regulations, and orders.
official delegated the authority to file (5) Additional information. The author-
the proposal; ized officer may require any other in-
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(D) If the proponent is a private cor- formation and data necessary to deter-
poration: mine feasibility of a project or activity

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§ 251.54 36 CFR Ch. II (7–1–19 Edition)

proposed; compliance with applicable individuals, unless such training or ex-


laws, regulations, and orders; compli- ercises are federally funded.
ance with requirements for associated (ix) The proposed use does not in-
clearances, certificates, permits, or li- volve disposal of solid waste or disposal
censes; and suitable terms and condi- of radioactive or other hazardous sub-
tions to be included in the authoriza- stances.
tion. The authorized officer shall make (2) Results of initial screening. Any
requests for any additional information proposed use other than a noncommer-
in writing. cial group use that does not meet all of
(e) Pre-application actions—(1) Initial the minimum requirements of para-
screening. Upon receipt of a request for graphs (e)(1)(i)-(ix) of this section shall
any proposed use other than for non- not receive further evaluation and
commercial group use, the authorized processing. In such event, the author-
officer shall screen the proposal to en- ized officer shall advise the proponent
sure that the use meets the following that the use does not meet the min-
minimum requirements applicable to imum requirements. If the proposal
all special uses: was submitted orally, the authorized
(i) The proposed use is consistent officer may respond orally. If the pro-
with the laws, regulations, orders, and posal was made in writing, the author-
policies establishing or governing Na- ized officer shall notify the proponent
tional Forest System lands, with other in writing that the proposed use does
applicable Federal law, and with appli- not meet the minimum requirements
cable State and local health and sani- and shall simultaneously return the re-
tation laws. quest.
(ii) The proposed use is consistent or (3) Guidance and information to pro-
can be made consistent with standards ponents. For proposals for noncommer-
and guidelines in the applicable forest cial group use as well as for those pro-
land and resource management plan posals that meet the minimum require-
prepared under the National Forest ments of paragraphs (e)(1)(i)-(ix), the
Management Act and 36 CFR part 219. authorized officer, to the extent prac-
(iii) The proposed use will not pose a ticable, shall provide the proponent
serious or substantial risk to public guidance and information on the fol-
health or safety. lowing:
(iv) The proposed use will not create (i) Possible land use conflicts as iden-
an exclusive or perpetual right of use tified by review of forest land and re-
or occupancy. source management plans, landowner-
(v) The proposed use will not unrea- ship records, and other readily avail-
sonably conflict or interfere with ad- able sources;
ministrative use by the Forest Service, (ii) Proposal and application proce-
other scheduled or authorized existing dures and probable time requirements;
uses of the National Forest System, or (iii) Proponent qualifications;
use of adjacent non-National Forest (iv) Applicable fees, charges, bonding,
System lands. and/or security requirements;
(vi) The proponent does not have any (v) Necessary associated clearances,
delinquent debt owed to the Forest permits, and licenses;
Service under terms and conditions of (vi) Environmental and management
a prior or existing authorization, un- considerations;
less such debt results from a decision (vii) Special conditions; and
on an administrative appeal or from a (viii) identification of on-the-ground
fee review and the proponent is current investigations which will require tem-
with the payment schedule. porary use permits.
(vii) The proposed use does not in- (4) Confidentiality. If requested by the
volve gambling or providing of sexually proponent, the authorized officer, or
oriented commercial services, even if other Forest Service official, to the ex-
permitted under State law. tent reasonable and authorized by law,
(viii) The proposed use does not in- shall hold confidential any project and
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volve military or paramilitary training program information revealed during


or exercises by private organizations or pre-application contacts.

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Forest Service, USDA § 251.54

(5) Second-level screening of proposed terest in any oil and gas pipeline right-
uses. A proposal which passes the ini- of-way or associated permit; and
tial screening set forth in paragraph (ii) The authorized officer shall
(e)(1) and for which the proponent has promptly notify the House Committee
submitted information as required in on Resources and the Senate Com-
paragraph (d)(2)(ii) of this section, pro- mittee on Energy and Natural Re-
ceeds to second-level screening and sources upon receipt of a proposal for a
consideration. In order to complete right-of-way for a pipeline 24 inches or
this screening and consideration, the more in diameter, and no right-of-way
authorized officer may request such ad- for that pipeline shall be granted until
ditional information as necessary to notice of intention to grant the right-
obtain a full description of the pro- of-way, together with the authorized
posed use and its effects. An authorized officer’s detailed findings as to the
officer shall reject any proposal, in- term and conditions the authorized of-
cluding a proposal for commercial ficer proposes to impose, have been
group uses, if, upon further consider- submitted to the committees.
ation, the officer determines that: (2) Major development. Proponents of a
(i) The proposed use would be incon- major development may submit a re-
sistent or incompatible with the pur- quest for a planning permit of up to 10
poses for which the lands are managed, years in duration. Requests for a plan-
or with other uses; or ning permit must include the informa-
(ii) The proposed use would not be in tion contained in paragraphs (d)(1)
the public interest; or through (d)(3) of this section. Upon
completion of a master development
(iii) The proponent is not qualified;
plan developed under a planning per-
or
mit, proponents may then submit a re-
(iv) The proponent does not or cannot quest for a long-term authorization to
demonstrate technical or economic fea- construct and operate the develop-
sibility of the proposed use or the fi- ment. At a minimum, a request for a
nancial or technical capability to un- long-term permit for a major develop-
dertake the use and to fully comply ment must include the information
with the terms and conditions of the contained in paragraphs (d)(1) and
authorization; or (d)(2)(ii) through (d)(5) of this section.
(v) There is no person or entity au- Issuance of a planning permit does not
thorized to sign a special use author- prejudice approval or denial of a subse-
ization and/or there is no person or en- quent request for a special use permit
tity willing to accept responsibility for for the development.
adherence to the terms and conditions (g) Application processing and re-
of the authorization. sponse—(1) Acceptance of applications.
(6) NEPA compliance for second-level Except for proposals for noncommer-
screening process. A request for a special cial group uses, if a request does not
use authorization that does not meet meet the criteria of both screening
the criteria established in paragraphs processes or is subsequently denied, the
(e)(5)(i) through (e)(5)(v) of this section proponent must be notified with a writ-
does not constitute an agency proposal ten explanation of the rejection or de-
as defined in 40 CFR 1508.23 and, there- nial and any written proposal returned
fore, does not require environmental to the proponent. If a request for a pro-
analysis and documentation. posed use meets the criteria of both the
(f) Special requirements for certain pro- initial and second-level screening proc-
posals—(1) Oil and gas pipeline rights-of- esses as described in paragraph (e) of
way. These proposals must include the this section, the authorized officer
citizenship of the proponent(s) and dis- shall notify the proponent that the
close the identity of its participants as agency is prepared to accept a written
follows: formal application for a special use au-
(i) Citizens of another country, the thorization and shall, as appropriate or
laws, customs, or regulations of which necessary, provide the proponent guid-
deny similar or like privileges to citi- ance and information of the type de-
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zens or corporations of the United scribed in paragraphs (e)(3)(i) through


States, shall not own an appreciable in- (e)(3)(viii) of this section.

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§ 251.54 36 CFR Ch. II (7–1–19 Edition)

(2) Processing applications. (i) Upon ac- forth below, unless applications are de-
ceptance of an application for a special nied within 48 hours of receipt. Where
use authorization other than a plan- an application for a noncommercial
ning permit, the authorized officer group use has been granted or is
shall evaluate the proposed use for the deemed to have been granted and an
requested site, including effects on the authorization has been issued under
environment. The authorized officer this paragraph, an authorized officer
may request such additional informa- may revoke that authorization only as
tion as necessary to obtain a full de- provided under § 251.60(a)(1)(i).
scription of the proposed use and its ef- (ii) An authorized officer shall grant
fects. an application for a special use author-
(ii) Federal, State, and local govern- ization for a noncommercial group use
ment agencies and the public shall re- upon a determination that:
ceive adequate notice and an oppor- (A) Authorization of the proposed ac-
tunity to comment upon a special use tivity is not prohibited by the rules at
proposal accepted as a formal applica- 36 CFR part 261, subpart B, or by Fed-
tion in accordance with Forest Service eral, State, or local law unrelated to
NEPA procedures. the content of expressive activity;
(iii) The authorized officer shall give (B) Authorization of the proposed ac-
due deference to the findings of an- tivity is consistent or can be made con-
other agency such as a Public Utility sistent with the standards and guide-
Commission, the Federal Regulatory lines in the applicable forest land and
Energy Commission, or the Interstate resource management plan required
Commerce Commission in lieu of an- under the National Forest Management
other detailed finding. If this informa- Act and 36 CFR part 219;
tion is already on file with the Forest (C) The proposed activity does not
Service, it need not be refiled, if ref- materially impact the characteristics
erence is made to the previous filing or functions of the environmentally
date, place, and case number. sensitive resources or lands identified
(iv) Applications for noncommercial in Forest Service Handbook 1909.15,
group uses must be received at least 72 chapter 30;
hours in advance of the proposed activ-
(D) The proposed activity will not
ity. Applications for noncommercial
delay, halt, or prevent administrative
group uses shall be processed in order
use of an area by the Forest Service or
of receipt, and the use of a particular
other scheduled or existing uses or ac-
area shall be allocated in order of re-
tivities on National Forest System
ceipt of fully executed applications,
lands, including but not limited to uses
subject to any relevant limitations set
and activities authorized under parts
forth in this section.
222, 223, 228, and 251 of this chapter;
(v) For applications for planning per-
(E) The proposed activity does not
mits, including those issued for a
violate State and local public health
major development as described in
laws and regulations as applied to the
paragraph (f)(3) of this section, the au-
proposed site. Issues addressed by
thorized officer shall assess only the
State and local public health laws and
applicant’s financial and technical
regulations as applied to the proposed
qualifications and determine compli-
site include but are not limited to:
ance with other applicable laws, regu-
lations, and orders. Planning permits (1) The sufficiency of sanitation fa-
may be categorically excluded from cilities;
documentation in an environmental as- (2) The sufficiency of waste-disposal
sessment or environmental impact facilities;
statement pursuant to Forest Service (3) The availability of sufficient pota-
Handbook 1909.15 (36 CFR 200.4). ble drinking water;
(3) Response to applications for non- (4) The risk of disease from the phys-
commercial group uses. (i) All applica- ical characteristics of the proposed site
tions for noncommercial group uses or natural conditions associated with
shall be deemed granted and an author- the proposed site; and
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ization shall be issued for those uses (5) The risk of contamination of the
pursuant to the determination as set water supply;

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Forest Service, USDA § 251.55

(F) The proposed activity will not of this section constitutes final agency
pose a substantial danger to public action, is not subject to administrative
safety. Considerations of public safety appeal, and is immediately subject to
must not include concerns about pos- judicial review.
sible reaction to the users’ identity or (4) Response to all other applications.
beliefs from non-members of the group Based on evaluation of the information
that is seeking an authorization and provided by the applicant and other
shall be limited to the following: relevant information such as environ-
(1) The potential for physical injury mental findings, the authorized officer
to other forest users from the proposed shall decide whether to approve the
activity; proposed use, approve the proposed use
(2) The potential for physical injury with modifications, or deny the pro-
to users from the physical characteris- posed use. A group of applications for
tics of the proposed site or natural con- similar uses having minor environ-
ditions associated with the proposed mental impacts may be evaluated with
site; one analysis and approved in one deci-
(3) The potential for physical injury sion.
to users from scheduled or existing (5) Authorization of a special use. Upon
uses or activities on National Forest a decision to approve a special use or a
System lands; and group of similar special uses, the au-
(4) The adequacy of ingress and thorized officer may issue one or more
egress in case of an emergency; special use authorizations as defined in
(G) The proposed activity does not § 251.51 of this subpart.
involve military or paramilitary train- [63 FR 65964, Nov. 30, 1998, as amended at 74
ing or exercises by private organiza- FR 68381, Dec. 24, 2009; 78 FR 33725, June 5,
tions or individuals, unless such train- 2013]
ing or exercises are federally funded;
and § 251.55 Nature of interest.
(H) A person or persons 21 years of (a) A holder is authorized only to oc-
age or older have been designated to cupy such land and structures and con-
sign and do sign a special use author- duct such activities as is specified in
ization on behalf of the applicant. the special use authorization. The
(iii) If an authorized officer denies an holder may sublet the use and occu-
application because it does not meet pancy of the premises and improve-
the criteria in paragraphs (g)(3)(ii)(A) ments authorized only with the prior
through (g)(3)(ii)(H) of this section, the written approval of the authorized offi-
authorized officer shall notify the ap- cer, but the holder shall continue to be
plicant in writing of the reasons for the responsible for compliance with all
denial. If an alternative time, place, or conditions of the special use authoriza-
manner will allow the applicant to tion.
meet the eight evaluation criteria, an (b) All rights not expressly granted
authorized officer shall offer that al- are retained by the United States, in-
ternative. If an application is denied cluding but not limited to (1) con-
solely under paragraph (g)(3)(ii)(C) of tinuing rights of access to all National
this section and all alternatives sug- Forest System land (including the sub-
gested are unacceptable to the appli- surface and air space); (2) a continuing
cant, the authorized officer shall offer right of physical entry to any part of
to have completed the requisite envi- the authorized facilities for inspection,
ronmental and other analyses for the monitoring, or for any other purposes
requested site. A decision to grant or or reason consistent with any right or
deny the application for which an envi- obligation of the United States under
ronmental assessment or an environ- any law or regulation; and (3) the right
mental impact statement is prepared is to require common use of the land or
subject to the notice and appeal proce- to authorize the use by others in any
dures at 36 CFR part 215 and shall be way not inconsistent with a holder’s
made within 48 hours after the decision existing rights and privileges after con-
becomes final under that appeal proc- sultation with all parties and agencies
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ess. A denial of an application in para- involved. When costs can be feasibly al-
graphs (g)(3)(ii)(A) through (g)(3)(ii)(H) located and have not been amortized, a

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§ 251.56 36 CFR Ch. II (7–1–19 Edition)

new holder may be required to com- (B) Manage efficiently the lands sub-
pensate existing holders for an equi- ject to the use and adjacent thereto;
table proportion of the original costs (C) Protect other lawful users of the
or other expense associated with the lands adjacent to or occupied by such
common use. use;
(c) Special use authorizations are (D) Protect lives and property;
subject to all outstanding valid rights. (E) Protect the interests of individ-
(d) Each special use authorization uals living in the general area of the
will specify the lands to be used or oc- use who rely on the fish, wildlife, and
cupied which shall be limited to that other biotic resources of the area for
which the authorized officer deter- subsistence purposes;
mines: (1) Will be occupied by the fa- (F) Require siting to cause the least
cilities authorized; (2) to be necessary damage to the environment, taking
for the construction, operation, main- into consideration feasibility and other
tenance, and full utilization of the au- relevant factors; and
thorized facilities or the conduct of au- (G) Otherwise protect the public in-
thorized activities; and, (3) to be nec- terest.
essary to protect the public health and
NOTE TO PARAGRAPH (a)(1)(ii)(G): The De-
safety and the environment.
partment is making explicit its preexisting
(e) The holder will secure permission understanding of § 251.56(a)(1)(ii)(G) of this
under applicable law, and pay in ad- subpart in the context of authorizing non-
vance, the value as determined by the commercial group uses of National Forest
authorized officer for any mineral and System lands. Section 251.56(a)(1)(ii)(G) pro-
vegetative materials (including timber) vides that each special use authorization
to be cut, removed, used, or destroyed shall contain such terms and conditions as
by the holder from the authorized use the authorized officer deems necessary to
otherwise protect the public interest. In the
area or other National Forest System
context of noncommercial group uses, the
land. The authorized officer may, in Forest Service interprets the term ‘‘public
lieu of requiring an advance payment, interest’’ found in § 251.56(a)(1)(ii)(G) to refer
require the holder to stockpile or stack to the three public interests identified by the
the material at designated locations Forest Service on August 30, 1995. These pub-
for later disposal by the United States. lic interests include the protection of re-
sources and improvements on National For-
§ 251.56 Terms and conditions. est System lands, the allocation of space
among potential or existing uses and activi-
(a) General. (1) Each special use au- ties, and public health and safety concerns.
thorization must contain: Under this construction, § 251.56(a)(1)(ii)(G)
(i) Terms and conditions which will: allows the Forest Service to impose terms
(A) Carry out the purposes of applica- and conditions that are not specifically ad-
ble statutes and rules and regulations dressed in § 251.56(a)(1)(ii)(A)–(F) but only
issued thereunder; those that further these public interests. The
(B) Minimize damage to scenic and Forest Service shall implement and enforce
esthetic values and fish and wildlife § 251.56(a)(1)(ii)(G) in accordance with this in-
terpretation.
habitat and otherwise protect the envi-
ronment; (2) Authorizations for use of National
(C) Require compliance with applica- Forest System lands may be condi-
ble air and water quality standards es- tioned to require State, county, or
tablished by or pursuant to applicable other Federal agency licenses, permits,
Federal or State law; and certificates, or other approval docu-
(D) Require compliance with State ments, such as a Federal Communica-
standards for public health and safety, tion Commission license, a Federal En-
environmental protection, and siting, ergy Regulatory Commission license, a
construction, operation, and mainte- State water right, or a county building
nance if those standards are more permit.
stringent than applicable Federal (b) Duration and renewability—(1) Re-
standards. quirements. If appropriate, each special
(ii) Such terms and conditions as the use authorization will specify its dura-
authorized officer deems necessary to: tion and renewability. The duration
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(A) Protect Federal property and eco- shall be no longer than the authorized
nomic interests; officer determines to be necessary to

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Forest Service, USDA § 251.56

accomplish the purpose of the author- (A) Analysis of the information sub-
ization and to be reasonable in light of mitted by the applicant indicates that
all circumstances concerning the use, a shorter term is sufficient for financ-
including ing of the ski area;
(i) Resource management direction (B) The ski area development, wheth-
contained in land management and er existing or proposed, does not meet
other plans; the standards of paragraph (2)(i)(A)
(ii) Public benefits provided; through (F) of this section; or
(iii) Cost and life expectancy of the (C) A 40-year authorization would be
authorized facilities; inconsistent with the approved forest
(iv) Financial arrangements for the land and resource management plan
project; and governing the area (36 CFR part 219).
(v) The life expectancy of associated (c) Preconstruction approvals. Forest
facilities, licenses, etc. Except for spe- Service approval of location, design
cial use authorizations issued under and plans (or standards, if appropriate)
the National Forest Ski Area Permit of all developments within the author-
Act of 1986, authorizations exceeding 30 ized area will be required prior to con-
years shall provide for revision of struction.
terms and conditions at specified inter- (d) Liability. Holders shall pay the
vals to reflect changing times and con- United States for all injury, loss, or
ditions. damage, including fire suppression
costs, in accordance with existing Fed-
(2) Ski area permits. (i) For authoriza-
eral and State laws.
tions issued under the National Forest
(1) Holders shall also indemnify the
Ski Area Permit Act of 1986, the au-
United States for any and all injury,
thorized officer normally shall issue a
loss, or damage, including fire suppres-
ski area authorization for 40 years, if,
sion costs, the United States may suf-
upon consideration of information sub-
fer as a result of claims, demands,
mitted by the applicant, the authorized
losses, or judgments caused by the
officer finds that the ski area develop-
holder’s use or occupancy.
ment meets the following standards:
(2) Holders of special use authoriza-
(A) In the case of an existing permit
tions for high risk use and occupancy,
holder, existing on-site investment is
such as, but not limited to, powerlines
of sufficient magnitude to justify au-
and oil and gas pipelines, shall be held
thorization for 40 years;
liable for all injury, loss, or damage,
(B) In the case of an existing permit including fire suppression costs, caused
holder, existing investment of capital by the holder’s use or occupancy, with-
is in ski-related facilities; out regard to the holder’s negligence,
(C) Planned investment capital is di- provided that maximum liability shall
rectly related to development of ski be specified in the special use author-
area facilities and is not for financing ization as determined by a risk assess-
regular, ongoing operation and mainte- ment, prepared in accordance with es-
nance costs; tablished agency procedures, but shall
(D) Ski facilities requiring long-term not exceed $1,000,000 for any one occur-
investment are, or will be, located pre- rence. Liability for injury, loss, or
dominately on land authorized under a damage, including fire suppression
permit; costs, in excess of the specified max-
(E) The number and magnitude of imum shall be determined by the laws
planned facilities, as detailed in a Mas- governing ordinary negligence of the
ter Development Plan, clearly require jurisdiction in which the damage or in-
long-term financing and/or operation; jury occurred.
(F) The United States is not the (e) Bonding. An authorized officer
owner of the principal facilities within may require the holder of a special use
the authorized ski area. authorization for other than a non-
(ii) A term of less than 40 years shall commercial group use to furnish a bond
be authorized for a ski area when the or other security to secure all or any of
applicant requests a shorter term or the obligations imposed by the terms
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when, in the authorized officer’s discre- of the authorization or by any applica-


tion: ble law, regulation or order.

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§ 251.57 36 CFR Ch. II (7–1–19 Edition)

(f) Special terms and conditions—(1) ing permit to one issued pursuant to
Public service enterprises. Special use the National Forest Ski Area Permit
permits authorizing the operation of Act must submit a written request for
public service enterprises shall require the new authorization to the author-
that the permittee charge reasonable ized officer.
rates and furnish such services as may (3) With the consent of the holder,
be necessary in the public interest, ex- the authorized officer shall convert the
cept where such rates and services are authorization if:
regulated by Federal, State or munic- (i) The holder is in compliance with
ipal agencies having jurisdiction. the existing authorization;
(2) Common carriers. Oil and gas pipe- (ii) All fees currently due under the
lines and related facilities authorized existing authorization are paid in full;
under section 28 of the Mineral Leasing and
Act of 1920, 41 Stat. 449, as amended (30 (iii) Any proposed modifications of
U.S.C. 185), shall be constructed, oper- terms and conditions of the existing
ated and maintained as common car- authorization included in a request for
riers. The owners or operators of pipe- conversion meet the standards of para-
lines shall accept, convey, transport, or graphs (2)(i) (A) through (F) of this sec-
purchase without discrimination all oil tion and the relevant requirements of
or gas delivered to the pipeline without this subpart.
regard to whether such oil or gas was (4) A holder retains the right to de-
produced on Federal or nonfederal cline a new authorization offered pur-
lands. In the case of oil or gas produced suant to this paragraph and to con-
from Federal lands or from the re- tinue to operate under the terms of the
sources on the Federal lands in the vi- existing permit. However, pursuant to
cinity of the pipeline, the Secretary the rules at § 251.61 of this subpart,
may, after a full hearing with due no- major modifications of existing per-
tice thereof to interested parties and a mits shall require conversion to a per-
proper finding of facts, determine the mit issued under the authority of the
proportionate amounts to be accepted, National Forest Ski Area Permit Act,
conveyed, transported, or purchased. unless the holder provides compelling
The common carrier provisions of this justification for retaining the existing
section shall not apply to any natural permit.
gas pipeline operated (i) by any person
subject to regulation under the Natural [45 FR 38327, June 6, 1980, as amended at 49
Gas Act, 52 Stat. 821, as amended, (15 FR 46895, Nov. 29, 1984; 54 FR 22594, May 25,
U.S.C. 717) or (ii) by any public utility 1989; 60 FR 45294, Aug. 30, 1995; 63 FR 65967,
Nov. 30, 1998; 64 FR 48960, Sept. 9, 1999]
subject to regulation by a State or mu-
nicipal regulatory agency having juris- § 251.57 Rental fees.
diction to regulate the rates and
charges for the sale of natural gas to (a) Except as otherwise provided in
consumers within the State or munici- this part or when specifically author-
pality. Where natural gas not subject ized by the Secretary of Agriculture,
to State regulatory or conservation special use authorizations shall require
laws governing its purchase by pipeline the payment in advance of an annual
companies is offered for sale, each pipe- rental fee as determined by the author-
line company shall purchase, without ized officer.
discrimination, any such natural gas (1) The fee shall be based on the fair
produced in the vicinity of the pipe- market value of the rights and privi-
line. leges authorized, as determined by ap-
(g) Conversion of Ski Area Authoriza- praisal or other sound business man-
tions. (1) The Forest Service shall re- agement principles.
quest that all existing permit holders (2) Where annual fees of one hundred
convert existing authorizations for ski dollars ($100) or less are assessed, the
areas to a new authorization issued authorized officer may require either
pursuant to the National Forest Ski annual payment or a payment covering
Area Permit Act. more than one year at a time. If the
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(2) Any current holder of a ski area annual fee is greater than one hundred
permit who wishes to convert an exist- dollars ($100), holders who are private

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Forest Service, USDA § 251.58

individuals (that is, acting in an indi- (e) Special use authorizations issued
vidual capacity), as opposed to those under § 251.53(g) of this part may re-
who are commercial, other corporate, quire as all or a part of the consider-
or business or government entities, ation the reconditioning and mainte-
may, at their option, elect to make ei- nance of the government-owned or con-
ther annual payments or payments trolled structures, improvements, and
covering more than one year. land to a satisfactory standard. The
(3) A base cabin user fee for a recre- total consideration will be based upon
ation residence use shall be 5 percent of the fair market value of the rights and
the market value of the recreation res- privileges authorized.
idence lot, established by an appraisal (f) Special use authorizations involv-
conducted in accordance with the Act ing government-owned or controlled
of October 11, 2000 (16 U.S.C. 6201–13). buildings, structures, or other improve-
(b) All or part of the fee may be ments which require caretakers’ serv-
waived by the authorized officer, when ices, or the furnishing of special serv-
equitable and in the public interest, for ices such as water, electric lights, and
the use and occupancy of National For- clean-up, may require the payment of
est System land in the following cir- an additional fee or charge to cover the
cumstances: cost of such services.
(1) The holder is a State or local gov- (g) Except where specified otherwise
ernment or any agency or instrumen- by terms of a special use authorization,
tality thereof, excluding municipal rental fees may be initiated or adjusted
utilities and cooperatives whose prin- whenever necessary: (1) As a result of
cipal source of revenue from the au- fee review, reappraisal; or (2) upon a
thorized use is customer charges; or change in the holder’s qualifications
(2) The holder is a nonprofit associa- under paragraph (b) of this section; and
tion or nonprofit corporation, which is (3) notice is given prior to initiating or
not controlled or owned by profit-mak- adjusting rental fees.
ing corporations or business enter- (h) Each ski area authorization
prises, and which is engaged in public issued under the authority of the Na-
or semi-public activity to further pub- tional Forest Ski Area Permit Act
lic health, safety, or welfare, except shall include a clause that provides
that free use will not be authorized that the Forest Service may adjust and
when funds derived by the holder calculate future rental fees to reflect
through the authorization are used to Agency revisions to the existing sys-
increase the value of the authorized tem for determining fees based on fair
improvements owned by the holder, or market value or to comply with any
are used to support other activities of new fee system for determining fees
the holder; or based on fair market value that may be
(3) The holder provides without adopted after issuance of the author-
charge, or at reduced charge, a valu- ization.
able benefit to the public or to the pro-
(i) Each permit or term permit for a
grams of the Secretary; or
recreation residence use shall include a
(4) When the rental fee is included in
clause stating that the Forest Service
the fees for an authorized use or occu-
shall recalculate the base cabin user
pancy for which the United States is
fee at least every 10 years and shall use
already receiving compensation; or
an appraisal to recalculate that fee as
(5) When a right-of-way is authorized
provided in paragraph (a)(3) of this sec-
in reciprocation for a right-of-way con-
tion.
veyed to the United States; or
(6) For rights-of-way involving cost- [45 FR 38327, June 6, 1980, as amended at 51
share roads or reciprocal right-of-way FR 16683, May 6, 1986; 54 FR 22594, May 25,
agreements. 1989; 60 FR 45294, Aug. 30, 1995; 63 FR 65967,
(c) No rental fee will be charged when Nov. 30, 1998; 71 FR 16621, Apr. 3, 2006]
the holder is the Federal government.
(d) No fee shall be charged when the § 251.58 Cost recovery.
authorization is for a noncommercial (a) Assessment of fees to recover agency
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group use as defined in § 251.51 of this processing and monitoring costs. The For-
subpart. est Service shall assess fees to recover

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§ 251.58 36 CFR Ch. II (7–1–19 Edition)

the agency’s processing costs for spe- holder shall be subject to a processing
cial use applications and monitoring fee for issuance of a new authorization,
costs for special use authorizations. even if the holder’s existing authoriza-
Applicants and holders shall submit tion does not require submission of an
sufficient information for the author- application for a new authorization.
ized officer to estimate the number of (4) Monitoring of authorizations
hours required to process their applica- issued or amended on or after March 23,
tions or monitor their authorizations. 2006.
Cost recovery fees are separate from (c) Processing fee requirements. A proc-
any fees charged for the use and occu- essing fee is required for each applica-
pancy of National Forest System lands. tion for or agency action to issue a spe-
(b) Special use applications and author- cial use authorization as identified in
izations subject to cost recovery require- paragraphs (b)(1) through (b)(3) of this
ments. Except as exempted in para- section. Processing fees do not include
graphs (g)(1) through (g)(4) of this sec- costs incurred by the applicant in pro-
tion, the cost recovery requirements of viding information, data, and docu-
this section apply in the following situ- mentation necessary for the authorized
ations to the processing of special use officer to make a decision on the pro-
applications and monitoring of special posed use or occupancy pursuant to the
use authorizations issued pursuant to provisions at § 251.54.
this subpart: (1) Basis for processing fees. The proc-
(1) Applications for use and occupancy essing fee categories 1 through 6 set
that require a new special use authoriza- out in paragraphs (c)(2)(i) through
tion. Fees for processing an application (c)(2)(vi) of this section are based upon
for a new special use authorization the costs that the Forest Service in-
shall apply to any application formally curs in reviewing the application, con-
accepted by the agency on or after ducting environmental analyses of the
March 23, 2006 and to any application effects of the proposed use, reviewing
formally accepted by the agency before any applicant-generated environmental
March 23, 2006, which the agency has documents and studies, conducting site
not commenced processing. Proposals visits, evaluating an applicant’s tech-
accepted as applications which the nical and financial qualifications, mak-
agency has commenced processing ing a decision on whether to issue the
prior to March 23, 2006 shall not be sub- authorization, and preparing docu-
ject to processing fees. The cost recov- mentation of analyses, decisions, and
ery provisions of this section shall not authorizations for each application.
apply to or supersede written agree- The processing fee for an application
ments providing for recovery of proc- shall be based only on costs necessary
essing costs executed by the agency for processing that application. ‘‘Nec-
and applicants prior to March 23, 2006. essary for’’ means that but for the ap-
(2) Changes to existing authorizations. plication, the costs would not have
Processing fees apply to proposals that been incurred and that the costs cover
require an application to amend or for- only those activities without which the
mally approve specific activities or fa- application cannot be processed. The
cilities as identified in an existing au- processing fee shall not include costs
thorization, operating plan, or master for studies for programmatic planning
development plan. Processing fees also or analysis or other agency manage-
apply to agency actions to amend a ment objectives, unless they are nec-
special use authorization. essary for the application being proc-
(3) Agency actions to issue a special use essed. For example, the processing fee
authorization and applications for shall not include costs for capacity
issuance of a new special use authoriza- studies, use allocation decisions, cor-
tion due to termination of an existing au- ridor or communications site planning,
thorization, including termination caused and biological studies that address spe-
by expiration, a change in ownership or cies diversity, unless they are nec-
control of the authorized facilities, or a essary for the application. Propor-
change in ownership or control of the tional costs for analyses, such as ca-
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holder of the authorization. Upon termi- pacity studies, that are necessary for
nation of an existing authorization, a an application may be included in the

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Forest Service, USDA § 251.58

processing fee for that application. The tify the applicant in writing of this de-
costs incurred for processing an appli- termination; or
cation, and thus the processing fee, de- (B) May agree in writing to waive
pend on the complexity of the project; payment of reasonable costs and pay
the amount of information that is nec- the actual costs incurred in processing
essary for the authorized officer’s deci- the application.
sion in response to the proposed use (2) Processing fee categories. No fee is
and occupancy; and the degree to charged for applications taking 1 hour
which the applicant can provide this or less for the Forest Service to proc-
information to the agency. Processing ess. Applications requiring more than 1
work conducted by the applicant or a hour for the agency to process are cov-
third party contracted by the applicant ered by the fee categories 1 through 6
minimizes the costs the Forest Service set out in the following paragraphs i
will incur to process the application, through vi.
and thus reduces the processing fee. (i) Category 1: Minimal Impact: More
The total processing time is the total than 1 hour and up to and including 8
time estimated for all Forest Service hours. The total estimated time in this
personnel involved in processing an ap- minor category is more than 1 hour
plication and is estimated case by case and up to and including 8 hours for
to determine the fee category. Forest Service personnel to process an
(i) Processing fee determinations. The
application.
applicable fee rate for processing appli-
(ii) Category 2: More than 8 and up to
cations in minor categories 1 through 4
and including 24 hours. The total esti-
(paragraphs (c)(2)(i) through (c)(2)(iv)
of this section) shall be assessed from a mated time in this minor category is
schedule. The processing fee for appli- more than 8 and up to and including 24
cations in category 5, which may be ei- hours for Forest Service personnel to
ther minor or major, shall be estab- process an application.
lished in the master agreement (para- (iii) Category 3: More than 24 and up to
graph (c)(2)(v) of this section). For and including 36 hours. The total esti-
major category 5 (paragraph (c)(2)(v) of mated time in this minor category is
this section) and category 6 (paragraph more than 24 and up to and including 36
(c)(2)(vi) of this section) cases, the au- hours for Forest Service personnel to
thorized officer shall estimate the process an application.
agency’s full actual processing costs. (iv) Category 4: More than 36 and up to
The estimated processing costs for cat- and including 50 hours. The total esti-
egory 5 and category 6 cases shall be mated time in this minor category is
reconciled as provided in paragraphs more than 36 and up to and including 50
(c)(5)(ii) and (iii) and (c)(6)(ii) and (iii) hours for Forest Service personnel to
of this section. process an application.
(ii) Reduction in processing fees for cer- (v) Category 5: Master agreements. The
tain category 6 applications. For cat- Forest Service and the applicant may
egory 6 applications submitted under enter into master agreements for the
authorities other than the Mineral agency to recover processing costs as-
Leasing Act, the applicant: sociated with a particular application,
(A) May request a reduction of the a group of applications, or similar ap-
processing fee based upon the appli- plications for a specified geographic
cant’s written analysis of actual costs, area. This category is minor if 50 hours
the monetary value of the rights and or less are needed for Forest Service
privileges sought, that portion of the personnel to process an application and
costs incurred for the benefit of the major if more than 50 hours are needed.
general public interest, the public serv- In signing a master agreement for a
ice provided, the efficiency of the agen- major category application submitted
cy processing involved, and other fac- under authorities other than the Min-
tors relevant to determining the rea- eral Leasing Act, an applicant waives
sonableness of the costs. The agency the right to request a reduction of the
will determine whether the estimate of processing fee based upon the reason-
kpayne on VMOFRWIN702 with $$_JOB

full actual costs should be reduced ableness factors enumerated in para-


based upon this analysis and will no- graph (c)(1)(ii)(A) of this section. A

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§ 251.58 36 CFR Ch. II (7–1–19 Edition)

master agreement shall at a minimum category 6 processing fee and shall in-
include: clude costs such as those incurred in
(A) The fee category or estimated printing and mailing the prospectus;
processing costs; having parties other than the Forest
(B) A description of the method for Service review and evaluate applica-
periodic billing, payment, and audit- tions; establishing a case file; record-
ing; ing data; conducting financial reviews;
(C) A description of the geographic and, for selected applicants, any addi-
area covered by the agreement; tional environmental analysis required
(D) A work plan and provisions for in connection with their applications.
updating the work plan; Processing fees shall be paid in equal
(E) Provisions for reconciling dif- shares or on a prorated basis, as
ferences between estimated and final deemed appropriate by the authorized
processing costs; and officer, by all parties who submitted
(F) Provisions for terminating the proposals that were processed as appli-
agreement. cations pursuant to the solicitation,
(vi) Category 6: More than 50 hours. In including applicants for recreation spe-
this major category more than 50 hours cial uses that are otherwise exempt
are needed for Forest Service personnel under paragraph (g)(3) of this section
to process an application. The author- when the Forest Service requires more
ized officer shall determine the issues than 50 hours in the aggregate to proc-
to be addressed and shall develop pre- ess the applications submitted in re-
liminary work and financial plans for sponse to the prospectus.
estimating recoverable costs. (iii) Solicited applications. When the
(3) Multiple applications other than Forest Service solicits applications
those covered by master agreements (cat- through the issuance of a prospectus on
egory 5). (i) Unsolicited applications its own initiative, rather than in re-
where there is no competitive interest. sponse to an unsolicited proposal or
Processing costs that are incurred in proposals, the agency is responsible for
processing more than one of these ap- the cost of environmental analyses
plications (such as the cost of environ- conducted prior to issuance of the pro-
mental analysis or printing an environ- spectus. All proposals accepted pursu-
mental impact statement that relates ant to that solicitation shall be proc-
to all of the applications) must be paid essed as applications. Processing fees
in equal shares or on a prorated basis, for these cases shall be determined pur-
as deemed appropriate by the author- suant to the procedures for estab-
ized officer, by each applicant, includ- lishing a category 6 processing fee and
ing applicants for recreation special shall include costs such as those in-
uses that are otherwise exempt under curred in printing and mailing the pro-
paragraph (g)(3) of this section when spectus; having parties other than the
the Forest Service requires more than Forest Service review and evaluate ap-
50 hours in the aggregate to process the plications; establishing a case file; re-
applications submitted in response to cording data; conducting financial re-
the prospectus. views; and, for selected applicants, any
(ii) Unsolicited proposals where com- additional environmental analysis re-
petitive interest exists. When there is one quired in connection with their appli-
or more unsolicited proposals and the cations. Processing fees shall be paid in
authorized officer determines that equal shares or on a prorated basis, as
competitive interest exists, the agency deemed appropriate by the authorized
shall issue a prospectus. All proposals officer, by all parties who submitted
accepted pursuant to that solicitation proposals that were processed as appli-
shall be processed as applications. The cations pursuant to the solicitation,
applicants are responsible for the costs including applicants for recreation spe-
of environmental analyses that are cial uses that are otherwise exempt
necessary for their applications and under paragraph (g)(3) of this section
that are conducted prior to issuance of when the Forest Service requires more
the prospectus. Processing fees for than 50 hours in the aggregate to proc-
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these cases shall be determined pursu- ess the applications submitted in re-
ant to the procedures for establishing a sponse to the prospectus.

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Forest Service, USDA § 251.58

(4) Billing and revision of processing has not waived payment of reasonable
fees. (i) Billing. When the Forest Serv- costs) of processing an application sub-
ice accepts a special use application, mitted under other authorities, the ap-
the authorized officer shall provide plicant shall pay the difference be-
written notice to the applicant that tween the estimated and full actual or
the application has been formally ac- reasonable processing costs.
cepted. The authorized officer shall not (6) Refunds of processing fees. (i) Proc-
bill the applicant a processing fee until essing fees in minor categories 1
the agency is prepared to process the through 4 are nonrefundable and shall
application. not be reconciled.
(ii) Revision of processing fees. Minor (ii) For category 5 cases, if payment
category processing fees shall not be of the processing fee exceeds the agen-
reclassified into a higher minor cat- cy’s final processing costs for the appli-
egory once the processing fee category cations covered by a master agree-
has been determined. However, if the ment, the authorized officer either
authorized officer discovers previously shall refund the excess payment to the
undisclosed information that neces- applicant or, at the applicant’s request,
sitates changing a minor category shall credit it towards monitoring fees
processing fee to a major category due.
processing fee, the authorized officer (iii) For category 6 cases, if payment
shall notify the applicant or holder of of the processing fee exceeds the full
the conditions prompting a change in actual costs of processing an applica-
the processing fee category in writing tion submitted under the Mineral Leas-
before continuing with processing the ing Act, or the full reasonable costs
application. The applicant or holder (when the applicant has not waived
may accept the revised processing fee payment of reasonable costs) of proc-
category and pay the difference be- essing an application submitted under
tween the previous and revised proc- other authorities, the authorized offi-
essing categories; withdraw the appli- cer either shall refund the excess pay-
cation; revise the project to lower the ment to the applicant or, at the appli-
processing costs; or request review of cant’s request, shall credit it towards
the disputed fee as provided in para- monitoring fees due.
graphs (e)(1) through (e)(4) of this sec- (iv) For major category 5 and cat-
tion. egory 6 applications, an applicant
(5) Payment of processing fees. (i) Pay- whose application is denied or with-
ment of a processing fee shall be due drawn in writing is responsible for
within 30 days of issuance of a bill for costs incurred by the Forest Service in
the fee, pursuant to paragraph (c)(4) of processing the application up to and in-
this section. The processing fee must cluding the date the agency denies the
be paid before the Forest Service can application or receives written notice
initiate or, in the case of a revised fee, of the applicant’s withdrawal. When an
continue with processing an applica- applicant withdraws a major category 5
tion. Payment of the processing fee by or category 6 application, the applicant
the applicant does not obligate the also is responsible for any costs subse-
Forest Service to authorize the appli- quently incurred by the Forest Service
cant’s proposed use and occupancy. in terminating consideration of the ap-
(ii) For category 5 cases, when the es- plication.
timated processing costs are lower (7) Customer service standards. The
than the final processing costs for ap- Forest Service shall endeavor to make
plications covered by a master agree- a decision on an application that falls
ment, the applicant shall pay the dif- into minor processing category 1, 2, 3,
ference between the estimated and or 4, and that is subject to a categor-
final processing costs. ical exclusion pursuant to the National
(iii) For category 6 cases, when the Environmental Policy Act, within 60
estimated processing fee is lower than calendar days from the date of receipt
the full actual costs of processing an of the processing fee. If the application
application submitted under the Min- cannot be processed within the 60-day
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eral Leasing Act, or lower than the full period, then prior to the 30th calendar
reasonable costs (when the applicant day of the 60-day period, the authorized

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§ 251.58 36 CFR Ch. II (7–1–19 Edition)

officer shall notify the applicant in categories 1 through 4 (paragraphs


writing of the reason why the applica- (d)(2)(i) through (d)(2)(iv) of this sec-
tion cannot be processed within the 60- tion) shall be assessed from a schedule.
day period and shall provide the appli- The monitoring fee for authorizations
cant with a projected date when the in category 5, which may be minor or
agency plans to complete processing major, shall be established in the mas-
the application. For all other applica- ter agreement (paragraph (d)(2)(v) of
tions, including all applications that this section). For major category 5
require an environmental assessment (paragraph (d)(2)(v) of this section) and
or an environmental impact statement, category 6 (paragraph (d)(2)(vi) of this
the authorized officer shall, within 60 section) cases, the authorized officer
calendar days of acceptance of the ap- shall estimate the agency’s full actual
plication, notify the applicant in writ- monitoring costs. The estimated moni-
ing of the anticipated steps that will be toring costs for category 5 and cat-
needed to process the application.
egory 6 cases shall be reconciled as pro-
These customer service standards do
vided in paragraphs (d)(3)(ii) and (iii)
not apply to applications that are sub-
and (d)(4)(ii) and (iii) of this section.
ject to a waiver of or exempt from cost
recovery fees under §§ 251.58(f) or (g). (ii) Reductions in monitoring fees for
(d) Monitoring fee requirements. The certain category 6 authorizations. For
monitoring fee for an authorization category 6 authorizations issued under
shall be assessed independently of any authorities other than the Mineral
fee charged for processing the applica- Leasing Act, the holder:
tion for that authorization pursuant to (A) May request a reduction of the
paragraph (c) of this section. Payment monitoring fee based upon the holder’s
of the monitoring fee is due upon written analysis of actual costs, the
issuance of the authorization. monetary value of the rights or privi-
(1) Basis for monitoring fees. Moni- leges granted, that portion of the costs
toring is defined at § 251.51. For moni- incurred for the benefit of the general
toring fees in minor categories 1 public interest, the public service pro-
through 4, authorization holders are vided, the efficiency of the agency
assessed fees based upon the estimated monitoring involved, and other factors
time needed for Forest Service moni- relevant to determining the reason-
toring to ensure compliance with the ableness of the costs. The agency will
authorization during the construction determine whether the estimate of full
or reconstruction of temporary or per- actual costs should be reduced based
manent facilities and rehabilitation of upon this analysis and will notify the
the construction or reconstruction holder in writing of this determination;
site. Major category 5 and category 6 or
monitoring fees shall be based upon the (B) May agree in writing to waive
agency’s estimated costs to ensure
payment of reasonable costs and pay
compliance with the terms and condi-
the actual costs incurred in monitoring
tions of the authorization during all
the authorization.
phases of its term, including but not
limited to monitoring to ensure com- (2) Monitoring fee categories. No moni-
pliance with the authorization during toring fee is charged for authorizations
the construction or reconstruction of requiring 1 hour or less for the Forest
temporary or permanent facilities and Service to monitor. Authorizations re-
rehabilitation of the construction or quiring more than1 hour for the agency
reconstruction site. Monitoring for all to monitor are covered by fee cat-
categories does not include billings, egories 1 through 6 set out in the fol-
maintenance of case files, annual per- lowing paragraphs (d)(2)(i) through (vi)
formance evaluations, or scheduled in- of this section.
spections to determine compliance gen- (i) Category 1: Minimal Impact: More
erally with the terms and conditions of than 1 hour and up to and including 8
an authorization. hours. This minor category requires
(i) Monitoring fee determinations. The more than1 hour and up to and includ-
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applicable fee rate for monitoring com- ing 8 hours for Forest Service per-
pliance with authorizations in minor sonnel to monitor compliance with a

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Forest Service, USDA § 251.58

special use authorization during con- (B) A description of the method for
struction or reconstruction of tem- periodic billing, payment, and auditing
porary or permanent facilities and re- of monitoring fees;
habilitation of the construction or re- (C) A description of the geographic
construction site. area covered by the agreement;
(ii) Category 2: More than 8 and up to (D) A monitoring work plan and pro-
and including 24 hours. This minor cat- visions for updating the work plan;
egory requires more than 8 and up to (E) Provisions for reconciling dif-
and including 24 hours for Forest Serv- ferences between estimated and final
ice personnel to monitor compliance monitoring costs; and
with a special use authorization during (F) Provisions for terminating the
construction or reconstruction of tem- agreement.
porary or permanent facilities and re- (vi) Category 6: More than 50 hours.
habilitation of the construction or re- This major category requires more
construction site. than 50 hours for Forest Service per-
(iii) Category 3: More than 24 and up to sonnel to monitor compliance with the
and including 36 hours. This minor cat- terms and conditions of the authoriza-
egory requires more than 24 and up to tion during all phases of its term, in-
and including 36 hours for Forest Serv- cluding, but not limited, to monitoring
ice personnel to monitor compliance compliance with the authorization dur-
with a special use authorization during ing the construction or reconstruction
construction or reconstruction of tem- of temporary or permanent facilities
porary or permanent facilities and re- and rehabilitation of the construction
habilitation of the construction or re- or reconstruction site.
construction site. (3) Billing and payment of monitoring
fees. (i) The authorized officer shall es-
(iv) Category 4: More than 36 and up to
timate the monitoring costs and shall
and including 50 hours. This minor cat-
notify the holder of the required fee.
egory requires more than 36 and up to
Monitoring fees in minor categories 1
and including 50 hours for Forest Serv-
through 4 must be paid in full before or
ice personnel to monitor compliance
at the same time the authorization is
with a special use authorization during issued. For authorizations in major
construction or reconstruction of tem- category 5 and category 6, the esti-
porary or permanent facilities and re- mated monitoring fees must be paid in
habilitation of the construction or re- full before or at the same time the au-
construction site. thorization is issued, unless the au-
(v) Category 5: Master agreements. The thorized officer and the applicant or
Forest Service and the holder of an au- holder agree in writing to periodic pay-
thorization may enter into a master ments.
agreement for the agency to recover (ii) For category 5 cases, when the es-
monitoring costs associated with a par- timated monitoring costs are lower
ticular authorization or by a group of than the final monitoring costs for au-
authorizations for a specified geo- thorizations covered by a master agree-
graphic area. This category is minor if ment, the holder shall pay the dif-
50 hours or less are needed for Forest ference between the estimated and
Service personnel to monitor compli- final monitoring costs.
ance with an authorization and major (iii) For category 6 cases, when the
if more than 50 hours are needed. In estimated monitoring fee is lower than
signing a master agreement for a major the full actual costs of monitoring an
category authorization issued under authorization issued under the Mineral
authorities other than the Mineral Leasing Act, or lower than the full rea-
Leasing Act, a holder waives the right sonable costs (when the holder has not
to request a reduction of the moni- waived payment of reasonable costs) of
toring fee based upon the reasonable- monitoring an authorization issued
ness factors enumerated in paragraph under other authorities, the holder
(d)(1)(ii)(A) of this section. A master shall pay the difference in the next
agreement shall at a minimum include: periodic payment or the authorized of-
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(A) The fee category or estimated ficer shall bill the holder for the dif-
monitoring costs; ference between the estimated and full

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§ 251.58 36 CFR Ch. II (7–1–19 Edition)

actual or reasonable monitoring costs. (ii) If the applicant fails to pay the
Payment shall be due within 30 days of full disputed processing fee, the au-
receipt of the bill. thorized officer shall suspend further
(4) Refunds of monitoring fees. (i) Mon- processing of the application pending
itoring fees in minor categories 1 the supervisory officer’s determination
through 4 are nonrefundable and shall of an appropriate processing fee and
not be reconciled. the applicant’s payment of that fee.
(ii) For category 5 cases, if payment (3) In the case of a disputed moni-
of the monitoring fee exceeds the agen- toring fee:
cy’s final monitoring costs for the au- (i) If the applicant or holder pays the
thorizations covered by a master agree- full disputed monitoring fee, the au-
ment, the authorized officer shall ei-
thorized officer shall issue the author-
ther adjust the next periodic payment
ization or allow the use and occupancy
to reflect the overpayment or refund
to continue during the supervisory offi-
the excess payment to the holder.
(iii) For category 6 cases, if payment cer’s review of the disputed fee, unless
of the monitoring fee exceeds the full the applicant or holder elects not to
actual costs of monitoring an author- exercise the authorized use and occu-
ization issued under the Mineral Leas- pancy of National Forest System lands
ing Act, or the full reasonable costs during the review period.
(when the holder has not waived pay- (ii) If the applicant or holder fails to
ment of reasonable costs) of moni- pay the full disputed monitoring fee,
toring an authorization issued under the authorized officer shall not issue
other authorities, the authorized offi- the applicant a new authorization or
cer shall either adjust the next periodic shall suspend the holder’s existing au-
payment to reflect the overpayment or thorization in whole or in part pending
refund the excess payment to the hold- the supervisory officer’s determination
er. of an appropriate monitoring fee and
(e) Applicant and holder disputes con- the applicant’s or holder’s payment of
cerning processing or monitoring fee as- that fee.
sessments; requests for changes in fee cat- (4) The authorized officer’s imme-
egories or estimated costs. (1) If an appli- diate supervisor shall render a decision
cant or holder disagrees with the proc- on a disputed processing or monitoring
essing or monitoring fee category as- fee within 30 calendar days of receipt of
signed by the authorized officer for a the written request from the applicant
minor category or, in the case of a or holder. The supervisory officer’s de-
major processing or monitoring cat- cision is the final level of administra-
egory, with the estimated dollar tive review. The dispute shall be de-
amount of the processing or moni- cided in favor of the applicant or hold-
toring costs, the applicant or holder er if the supervisory officer does not re-
may submit a written request before spond to the written request within 30
the disputed fee is due for substitution days of receipt.
of an alternative fee category or alter-
(f) Waivers of processing and moni-
native estimated costs to the imme-
toring fees. (1) All or part of a proc-
diate supervisor of the authorized offi-
cer who determined the fee category or essing or monitoring fee may be
estimated costs. The applicant or hold- waived, at the sole discretion of the au-
er must provide documentation that thorized officer, when one or more of
supports the alternative fee category the following criteria are met:
or estimated costs. (i) The applicant or holder is a local,
(2) In the case of a disputed proc- State, or Federal governmental entity
essing fee: that does not or would not charge proc-
(i) If the applicant pays the full dis- essing or monitoring fees for com-
puted processing fee, the authorized of- parable services the applicant or holder
ficer shall continue to process the ap- provides or would provide to the Forest
plication during the supervisory offi- Service;
cer’s review of the disputed fee, unless (ii) A major portion of the processing
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the applicant requests that the proc- costs results from issues not related to
essing cease. the project being proposed;

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Forest Service, USDA § 251.59

(iii) The application is for a project (4) Recreation special use as defined
intended to prevent or mitigate dam- in the Forest Service’s directive sys-
age to real property, or to mitigate tem and requires 50 hours or less for
hazards or dangers to public health and Forest Service personnel to process, ex-
safety resulting from an act of God, an cept for situations involving multiple
act of war, or negligence of the United recreation special use applications pro-
States; vided for in paragraph (c)(3) of this sec-
(iv) The application is for a new au- tion. No monitoring fees shall be
thorization to relocate facilities or ac- charged for a recreation special use au-
tivities to comply with public health thorization that requires 50 hours or
and safety or environmental laws and less for Forest Service personnel to
regulations that were not in effect at monitor.
the time the authorization was issued; (h) Appeal of decisions. (1) A decision
(v) The application is for a new au- by the authorized officer to assess a
thorization to relocate facilities or ac- processing or monitoring fee or to de-
tivities because the land is needed by a termine the fee category or estimated
Federal agency or for a Federally fund- costs is not subject to administrative
ed project for an alternative public appeal.
purpose; or (2) A decision by an authorized offi-
(vi) The proposed facility, project, or cer’s immediate supervisor in response
use will provide, without user or cus- to a request for substitution of an al-
tomer charges, a valuable benefit to ternative fee category or alternative
the general public or to the programs estimated costs likewise is not subject
of the Secretary of Agriculture. to administrative appeal.
(2) An applicant’s or holder’s request (i) Processing and monitoring fee sched-
for a full or partial waiver of a proc- ules. (1) The Forest Service shall main-
essing or monitoring fee must be in tain schedules for processing and moni-
writing and must include an analysis toring fees in its directive system (36
that demonstrates how one or more of CFR 200.4). The rates in the schedules
the criteria in paragraphs (f)(1)(i) shall be updated annually by using the
through (f)(1)(vi) of this section apply. annual rate of change, second quarter
(g) Exemptions from processing or moni- to second quarter, in the Implicit Price
toring fees. No processing or monitoring Deflator-Gross Domestic Product (IPD–
fees shall be charged when the applica- GDP) index. The Forest Service shall
tion or authorization is for a: round the changes in the rates either
(1) Noncommercial group use as de- up or down to the nearest dollar.
fined in § 251.51, or when the applica- (2) Within 5 years of the effective
tion or authorization is to exempt a date of this rule, March 23, 2006, the
noncommercial activity from a closure Forest Service shall review these rates:
order, except for an application or au- (i) To determine whether they are
thorization for access to non-Federal commensurate with the actual costs
lands within the boundaries of the Na- incurred by the agency in conducting
tional Forest System granted pursuant the processing and monitoring activi-
to section 1323(a) of the Alaska Na- ties covered by this rule and
tional Interest Lands Conservation Act (ii) To assess consistency with proc-
(16 U.S.C. 3210(a)). essing and monitoring fee schedules es-
(2) Water systems authorized by sec- tablished by the United States Depart-
tion 501(c) of the Federal Land Policy ment of the Interior, Bureau of Land
and Management Act of 1976 (43 U.S.C. Management.
1761(c)). [71 FR 8913, Feb. 21, 2006]
(3) A use or activity conducted by a
Federal agency that is not authorized § 251.59 Transfer of authorized im-
under Title V of the Federal Land Pol- provements.
icy and Management Act of 1976 (43 If the holder, through death, vol-
U.S.C. 1761–1771); the Mineral Leasing untary sale, transfer, or through en-
Act of 1920 (30 U.S.C. 185); the National forcement of a valid legal proceeding
Historic Preservation Act of 1966 (16 or operation of law, ceases to be the
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U.S.C. 470h–2); or the Act of May 26, owner of the authorized improvements,
2000 (16 U.S.C. 460l–6d). the authorization terminates upon

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§ 251.60 36 CFR Ch. II (7–1–19 Edition)

change of ownership. Except for ease- (B) For failure of the holder to exer-
ments issued under authorities other cise the rights or privileges granted;
than § 251.53(e) and leases and ease- (C) With the consent of the holder; or
ments under § 251.53(l) of this subpart, (D) At the discretion of the author-
the new owner of the authorized im- ized officer for specific and compelling
provements must apply for and receive reasons in the public interest.
a new special use authorization. The (ii) Administrative review. Except for
new owner must meet requirements revocation or suspension of an ease-
under applicable regulations of this ment issued pursuant to § 251.53(e) or
subpart and agree to comply with the § 251.53(l) of this subpart, revocation or
terms and conditions of the authoriza- suspension of a special use authoriza-
tion and any new terms and conditions tion under this paragraph is subject to
warranted by existing or prospective appeal pursuant to 36 CFR part 214.
circumstances. (iii) Termination. For all special uses
[63 FR 65967, Nov. 30, 1998] except noncommercial group uses, a
special use authorization terminates
§ 251.60 Termination, revocation, and when, by its terms, a fixed or agreed-
suspension. upon condition, event, or time occurs.
(a) Grounds for termination, revocation, Termination of a special use authoriza-
and suspension—(1) Noncommercial group tion under this paragraph does not in-
uses—(i) Revocation or suspension. An volve agency action and is not subject
authorized officer may revoke or sus- to administrative or judicial review.
pend a special use authorization for a (b) For purposes of this section, the
noncommercial group use only under authorized officer is that person who
one of the following circumstances: issues the authorization or that offi-
(A) Under the criteria for which an cer’s successor.
application for a special use authoriza- (c) A right-of-way authorization
tion may be denied under granted to another Federal agency will
§ 251.54(g)(3)(ii); be limited, suspended, revoked, or ter-
(B) For noncompliance with applica- minated only with that agency’s con-
ble statutes or regulations or the terms currence.
and conditions of the authorization; (d) A right-of-way authorization serv-
(C) For failure of the holder to exer- ing another Federal agency will be lim-
cise the rights or privileges granted; or ited, suspended, revoked, or terminated
(D) With the consent of the holder. only after advance notice to, and con-
(ii) Judicial review. Revocation or sus- sultation with, that agency.
pension of a special use authorization (e) Except when immediate suspen-
under this paragraph constitutes final sion pursuant to paragraph (f) of this
agency action, is not subject to admin- section is indicated, the authorized of-
istrative appeal, and is immediately ficer shall give the holder written no-
subject to judicial review. tice of the grounds for suspension or
(iii) Termination. A special use au- revocation under paragraph (a) of this
thorization for a noncommercial group section and reasonable time to cure
use terminates when it expires by its any noncompliance, prior to suspension
own terms. Termination of a special or revocation pursuant to paragraph
use authorization under this paragraph (a) of this section.
does not involve agency action and is (f) Immediate suspension of a special
not subject to administrative or judi- use authorization, in whole or in part,
cial review. may be required when the authorized
(2) All other special uses—(i) Revoca- officer deems it necessary to protect
tion or suspension. An authorized officer the public health or safety or the envi-
may revoke or suspend a special use ronment. In any such case, within 48
authorization for all other special uses, hours of a request of the holder, the su-
except a permit or an easement issued perior of the authorized officer shall
pursuant to § 251.53(e) or an easement arrange for an on-site review of the ad-
issued under § 251.53(l) of this subpart: verse conditions with the holder. Fol-
(A) For noncompliance with applica- lowing this review, the superior officer
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ble statutes, regulations, or the terms shall take prompt action to affirm,
and conditions of the authorization; modify, or cancel the suspension.

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Forest Service, USDA § 251.64

(g) The authorized officer may sus- authorized officer shall consider, at a
pend or revoke permits or easements minimum, the findings or rec-
issued under § 251.53(e) or easements ommendations of other affected agen-
issued under § 251.53(l) of this subpart cies and whether to revise the terms
under the Rules of Practice Governing and conditions of the existing author-
Formal Adjudicatory Administrative ization or issue a new authorization.
Proceedings instituted by the Sec- Once approved, any new, changed, or
retary under 7 CFR 1.130 through 1.151. additional uses or area must be re-
(h)(1) The Chief may revoke any ease- flected in the existing or a new author-
ment granted under the provisions of ization.
the Act of October 13, 1964, 78 Stat. (b) A holder may be required to fur-
1089, 16 U.S.C. 534: nish as-built plans, maps, or surveys
(i) By consent of the owner of the upon completion of construction.
easement; [78 FR 33725, June 5, 2013]
(ii) By condemnation; or
(iii) Upon abandonment after a 5-year § 251.62 Acceptance.
period of nonuse by the owner of the Except for an easement, a special use
easement. authorization shall become effective
(2) Before any such easement is re- when signed by both the applicant and
voked upon abandonment, the owner of the authorized officer. The authoriza-
the easement shall be given notice and, tion must be signed by the applicant
upon the owner’s request made within and returned to the authorized officer
60 days after receipt of the notice, shall within 60 days of its receipt by the ap-
be given an appeal in accordance with plicant, unless extended by the author-
the provisions of 36 CFR part 214. ized officer. Refusal of an applicant to
(i) Upon revocation or termination of sign and accept a special use authoriza-
a special use authorization, the holder tion within the time allowed, and be-
must remove within a reasonable time fore its final approval and signature by
the structures and improvements and an authorized officer, shall terminate
shall restore the site to a condition an application and constitute denial of
satisfactory to the authorized officer, the requested use and occupancy.
unless the requirement to remove
structures or improvements is other- [53 FR 16550, May 10, 1988]
wise waived in writing or in the au-
§ 251.63 Reciprocity.
thorization. If the holder fails to re-
move the structures or improvements If it is determined that a right-of-
within a reasonable period, as deter- way shall be needed by the United
mined by the authorized officer, they States across nonfederal lands directly
shall become the property of the or indirectly owned or controlled by an
United States, but holder shall remain applicant for a right-of-way across Fed-
liable for the costs of removal and site eral lands, the authorized officer may
restoration. condition a special use authorization
to require the holder to grant the
[45 FR 38327, June 6, 1980; 45 FR 43167, June
United States the needed right-of-way.
26, 1980, as amended at 48 FR 28639, June 23,
1983; 60 FR 45295, Aug. 30, 1995; 63 FR 65968, § 251.64 Renewals.
Nov. 30, 1998; 74 FR 68381, Dec. 24, 2009; 75 FR
14995, Mar. 26, 2010; 75 FR 24802, May 6, 2010; (a) When a special use authorization
78 FR 33725, June 5, 2013] provides for renewal, the authorized of-
ficer shall renew it where such renewal
§ 251.61 Applications for new, changed, is authorized by law, if the project or
or additional uses or area. facility is still being used for the pur-
(a) Holders shall file a new or amend- pose(s) previously authorized and is
ed application for authorization of any being operated and maintained in ac-
new, changed, or additional uses or cordance with all the provisions of the
area, including any changes that in- authorization. In making such renewal,
volve any activity that has an impact the authorized officer may modify the
on the environment, other uses, or the terms, conditions, and special stipula-
kpayne on VMOFRWIN702 with $$_JOB

public. In approving or denying new, tions to reflect any new requirements


changed, or additional uses or area, the imposed by current Federal and State

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§ 251.65 36 CFR Ch. II (7–1–19 Edition)

land use plans, laws, regulations or is issued by the Forest Service to per-
other management decisions. Special mit such access.
uses may be reauthorized upon expira- (b) These regulations apply to access
tion so long as such use remains con- across all National Forest System
sistent with the decision that approved lands, including Congressionally des-
the expiring special use or group of ignated areas, and supplement the reg-
uses. If significant new information or ulations in subpart B of this part, and
circumstances have developed, appro- in parts 212 and 293 of this chapter. The
priate environmental analysis must ac- regulations of this subpart do not af-
company the decision to reauthorize fect rights-of-way established under
the special use. authority of R.S. 2477 (43 U.S.C. 932);
(b) When a special use authorization rights-of-way transferred to States
does not provide for renewal, it is dis- under 23 U.S.C. 317; access rights out-
cretionary with the authorized officer, standing in third parties at the time
upon request from the holder and prior the United States acquired the land; or
to its expiration, whether or not the the rights reserved in conveyances to
authorization shall be renewed. A re- the United States and in other ease-
newal pursuant to this section shall ments granted by an authorized officer
comply with the same provisions con- of the Forest Service. Except for the
tained in paragraph (a) of this section. aforementioned rights-of-way, cur-
[45 FR 38327, June 6, 1980, as amended at 63 rently valid special-use authorizations
FR 65968, Nov. 30, 1998] will become subject to the rules of this
subpart upon expiration, termination,
§ 251.65 Information collection re- reversion, modification, or reauthor-
quirements. ization.
The rules of this subpart governing (c) Subject to the terms and condi-
special use proposals and applications tions contained in this part and in
(§ 251.54), terms and conditions (§ 251.56), parts 212 and 293 of this chapter, as ap-
rental fees (§ 251.57), and modifications propriate, landowners shall be author-
(§ 251.61) specify the information that ized such access as the authorized offi-
proponents or applicants for special use cer deems to be adequate to secure
authorizations or holders of existing them the reasonable use and enjoy-
authorizations must provide to allow ment of their land.
an authorized officer to act on a re- (d) ln those cases where a land-
quest or administer the authorization. owner’s ingress or egress across Na-
Therefore, these rules contain informa- tional Forest System lands would re-
tion collection requirements as defined quire surface disturbance or would re-
in 5 CFR part 1320. These information quire the use of Government-owned
collection requirements are assigned roads, trails, or transportation facili-
OMB Control Number 0596–0082. ties not authorized for general public
[74 FR 68382, Dec. 24, 2009] use, the landowner must apply for and
receive a special-use or road-use au-
thorization documenting the occu-
Subpart C [Reserved] pancy and use authorized on National
Forest System lands or facilities and
Subpart D—Access to Non- identifying the landowner’s rights,
Federal Lands privileges, responsibilities, and obliga-
tions.
SOURCE: 56 FR 27417, June 14, 1991, unless (e) Where ingress and egress will re-
otherwise noted. quire the use of existing Government-
owned roads, trails, or other transpor-
§ 251.110 Scope and application. tation facilities which are open and
(a) The regulations in this subpart available for general public use, use by
set forth the procedures by which land- the landowner shall be in accordance
owners may apply for access across Na- with the provisions of part 212 of this
tional Forest System lands and the chapter.
kpayne on VMOFRWIN702 with $$_JOB

terms and conditions that govern any (f) The rules of this subpart do not
special use or other authorization that apply to access within conservation

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