[Code of Federal Regulations]
[Title 43, Volume 1]
[Revised as of October 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 43CFR36.10]

[Page 536-537]
 
                    TITLE 43--PUBLIC LANDS: INTERIOR
 
PART 36--TRANSPORTATION AND UTILITY SYSTEMS IN AND ACROSS, AND ACCESS INTO, CONSERVATION SYSTEM UNITS IN ALASKA--Table of Contents
 
Sec. 36.10  Access to inholdings.

    (a) This section sets forth the procedures to provide adequate and 
feasible access to inholdings within areas in accordance with section 
1110(b) of ANILCA. As used in this section, the term:
    (1) Adequate and feasible access means a route and method of access 
that is shown to be reasonably necessary and economically practicable 
but not necessarily the least costly alternative for achieving the use 
and development by the applicant on the applicant's nonfederal land or 
occupancy interest.
    (2) Area also includes public lands administered by the BLM 
designated as wilderness study areas.
    (3) Effectively surrounded by means that physical barriers prevent 
adequate and feasible access to State or private lands or valid 
interests in lands except across an area(s). Physical barriers include 
but are not limited to rugged mountain terrain, extensive marsh areas, 
shallow water depths and the presence of ice for large periods of the 
year.
    (4) Inholding means State-owned or privately owned land, including 
subsurface rights of such owners underlying public lands or a valid 
mining claim or other valid occupancy that is within or is effectively 
surrounded by one or more areas.
    (b) It is the purpose of this section to ensure adequate and 
feasible access across areas for any person who has a valid inholding. A 
right-of-way permit for access to an inholding pursuant to this section 
is required only when this part does not provide for adequate and 
feasible access without a right-of-way permit.

[[Page 537]]

    (c) Applications for a right-of-way permit for access to an 
inholding shall be filed with the appropriate Federal agency on a SF 
299. Mining claimants who have acquired their rights under the General 
Mining Law of 1872 may file their request for access as a part of their 
plan of operations. The appropriate Federal agency may require the 
mining claimant applicant to file a SF 299, if in its discretion, it 
determines that more complete information is needed. Applicants should 
ensure that the following information is provided:
    (1) Documentation of the property interest held by the applicant 
including, for claimants under the General Mining Law of 1872, as 
amended (30 U.S.C. 21-54), a copy of the location notice and 
recordations required by 43 U.S.C. 1744;
    (2) A detailed description of the use of the inholding for which the 
applied for right-of-way permit is to serve; and
    (3) If applicable, rationale demonstrating that the inholding is 
effectively surrounded by an area(s).
    (d) The application shall be filed in the same manner as under 
Sec. 36.4 and shall be reviewed and processed in accordance with 
Secs. 36.5 and 36.6.
    (e)(1) For any applicant who meets the criteria of paragraph (b) of 
this section, the appropriate Federal agency shall specify in a right-
of-way permit the route(s) and method(s) of access across the area(s) 
desired by the applicant, unless it is determined that:
    (i) The route or method of access would cause significant adverse 
impacts on natural or other values of the area and adequate and feasible 
access otherwise exists; or
    (ii) The route or method of access would jeopardize public health 
and safety and adequate and feasible access otherwise exists; or
    (iii) The route or method is inconsistent with the management 
plan(s) for the area or purposes for which the area was established and 
adequate and feasible access otherwise exists; or
    (iv) The method is unnecessary to accomplish the applicant's land 
use objective.
    (2) If the appropriate Federal agency makes one of the findings 
described in paragraph (e)(1) of this section, another alternate 
route(s) and/or method(s) of access that will provide the applicant 
adequate and feasible access shall be specified by that Federal agency 
in the right-of-way permit after consultation with the applicant.
    (f) All right-of-way permits issued pursuant to this section shall 
be subject to terms and conditions in the same manner as right-of-way 
permits issued pursuant to Sec. 36.9.
    (g) The decision by the appropriate Federal agency under this 
section is the final administrative decision.