[Code of Federal Regulations]

[Title 43, Volume 2]

[Revised as of October 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 43CFR2650.4-7]



[Page 185-189]

 

                    TITLE 43--PUBLIC LANDS: INTERIOR

 

    CHAPTER II--BUREAU OF LAND MANAGEMENT, DEPARTMENT OF THE INTERIOR

 

PART 2650_ALASKA NATIVE SELECTIONS--Table of Contents

 

            Subpart 2650_Alaska Native Selections: Generally

 

Sec.  2650.4-7  Public easements.



    (a) General requirements. (1) Only public easements which are 

reasonably necessary to guarantee access to publicly owned lands or 

major waterways and the other public uses which are contained in these 

regulations, or to guarantee international treaty obligations shall be 

reserved.

    (2) In identifying appropriate public easements assessment shall be 

made in writing of the use and purpose to be accommodated.

    (3) The primary standard for determining which public easements are 

reasonably necessary for access shall be present existing use. However, 

a



[[Page 186]]



public easement may be reserved absent a demonstration of present 

existing use only if it is necessary to guarantee international treaty 

obligations, if there is no reasonable alternative route or site 

available, or if the public easement is for access to an isolated tract 

or area of publicly owned land. When adverse impacts on Native culture, 

lifestyle, and subsistence needs are likely to occur because of the 

reservation of a public easement, alternative routes shall be assessed 

and reserved where reasonably available. The natural environment and 

other relevant factors shall also be considered.

    (4) All public easements which are reserved shall be specific as to 

use, location, and size. Standard sizes and uses which are delineated in 

this subsection may be varied only when justified by special 

circumstances.

    (5) Transportation, communication, and utility easements shall be 

combined where the combination of such easements is reasonable 

considering the primary purposes for which easement is to be reserved.

    (6) Public easements may be reserved to provide access to present 

existing Federal, State, or municipal corporation sites; these sites 

themselves shall not be reserved as public easements. Unless otherwise 

justified, access to these sites shall be limited to government use.

    (7) Scenic easements or easements for recreation on lands conveyed 

pursuant to the Act shall not be reserved. Nor shall public easements be 

reserved to hunt or fish from or on lands conveyed pursuant to the Act.

    (8) The identification of needed easements and major waterways shall 

include participation by appropriate Natives and Native corporations, 

LUPC, State, Federal agencies, and other members of the public.

    (9) After reviewing the identified easements needs, the Director 

shall tentatively determine which easements shall be reserved. Tentative 

determinations of major waterways shall also be made by the Director and 

shall apply to rivers, streams, and lakes. All lakes over 640 acres in 

size shall be screened to determine if they qualify as major waterways. 

Those smaller than 640 acres may be considered on a case-by-case basis. 

The Director shall issue a notice of proposed easements which notifies 

all parties that participated in the development of the easement needs 

and information on major waterways as to the tentative easement 

reservations and which directs that all comments be sent to the LUPC and 

the Director.

    (10) The State and the LUPC shall be afforded 90 days after notice 

by the Director to make recommendations with respect to the inclusion of 

public easements in any conveyance. If the Director does not receive a 

recommendation from the LUPC or the State within the time period herein 

called for, he may proceed with his determinations.

    (11) Prior to making a determination of public easements to be 

reserved, the Director shall review the recommendations of the LUPC, 

appropriate Native corporation(s), other Federal agencies, the State, 

and the public. Consideration shall be given to recommendations for 

public easement reservations which are timely submitted to the Bureau of 

Land Management and accompanied by written justification.

    (12) The Director, after such review, shall prepare a decision to 

convey that includes all necessary easements and other appropriate terms 

and conditions relating to conveyance of the land. If the decision 

prepared by the Director is contrary to the LUPC's recommendations, he 

shall notify the LUPC of the variance(s) and shall afford the LUPC 10 

days in which to document the reasons for its disagreement before making 

his final decision. The Director shall then issue a Decision to Issue 

Conveyance (DIC).

    (13) The Director shall terminate a public easement if it is not 

used for the purpose for which it was reserved by the date specified in 

the conveyance, if any, or by December 18, 2001, whichever occurs first, 

He may terminate an easement at any time if he finds that conditions are 

such that its retention is no longer needed for public use or 

governmental function. However, the Director shall not terminate an 

access easement to isolated tracts of publicly owned land solely because 

of the absence of proof of public use. Public easements which have been 

reserved to guarantee international treaty obligations shall



[[Page 187]]



not be terminated unless the Secretary determines that the reasons for 

such easements no longer justify the reservation. No public easement 

shall be terminated without proper notice and an opportunity for 

submission of written comments or for a hearing if a hearing is deemed 

to be necessary by either the Director or the Secretary.

    (b) Transportation easements. (1) Public easements for 

transportation purposes which are reasonably necessary to guarantee the 

public's ability to reach publicly owned lands or major waterways may be 

reserved across lands conveyed to Native corporations. Such purposes may 

also include transportation to and from communities, airports, docks, 

marine coastline, groups of private holdings sufficient in number to 

constitute a public use, and government reservations or installations. 

Public easements may also be reserved for railroads. If public easements 

are to be reserved, they shall:

    (i) Be reserved across Native lands only if there is no reasonable 

alternative route of transportation across publicly owned lands;

    (ii) Within the standard of reasonable necessity, be limited in 

number and not duplicative of one another (nonduplication does not 

preclude separate easements for winter and summer trails, if otherwise 

justified);

    (iii) Be subject only to specific uses and sizes which shall be 

placed in the appropriate interim conveyance and patent documents;

    (iv) Follow existing routes of travel unless a variance is otherwise 

justified;

    (v) Be reserved for future roads, including railroads and roads for 

future logging operations, only if they are site specific and actually 

planned for construction within 5 years of the date of conveyance;

    (vi) Be reserved in topographically suitable locations whenever the 

location is not otherwise determined by an existing route of travel or 

when there is no existing site;

    (vii) Be reserved along the marine coastline only to preserve a 

primary route of travel between coastal communities, publicly owned 

uplands, or coastal communities and publicly owned uplands;

    (viii) Be reserved from publicly owned uplands to the marine 

coastline only if significant present existing use has occurred on those 

publicly owned lands below the line of mean high tide. However, for 

isolated tracts of publicly owned uplands, public easements may be 

reserved to provide transportation from the marine coastline if there is 

no other reasonable transportation route;

    (ix) Be reserved along major waterways only to provide short 

portages or transportation routes around obstructions. However, this 

condition does not preclude the reservation of a trail or road easement 

which happens to run alongside a waterway;

    (x) Not be reserved on the beds of major waterways except where use 

of the bed is related to road or trail purposes, portaging, or changing 

the mode of travel between water and land (e.g., launching or landing a 

boat); a specific portion of the bed or shore of the waterway which is 

necessary to provide portage or transportation routes around 

obstructions, including those that are dangerous or impassible or 

seasonably dangerous or impassible, may be reserved.

    (xi) Not be reserved on the beds of nonmajor waterways except where 

use of the beds is related to road or trail purposes. However, this 

exception shall not be used to reserve a continuous linear easement on 

the streambed to facilitate access by boat.

    (xii) Not be reserved simply to reflect patterns of Native use on 

Native lands;

    (xiii) Not be reserved for the purpose of protecting Native 

stockholders from their respective corporations;

    (xiv) Not be reserved on the basis of subsistence use of the lands 

of one village by residents of another village.

    (2) Transportation easements shall be limited to roads and sites 

which are related to access. The use of these easements shall be 

controlled by applicable Federal, State, or municipal corporation laws 

or regulations. The uses stated herein will be specified in the interim 

conveyance and patent documents as permitted uses of the easement.

    (i) The width of a trail easement shall be no more than 25 feet if 

the uses to be accommodated are for travel by foot, dogsleds, animals, 

snowmobiles,



[[Page 188]]



two and three-wheel vehicles, and small all-terrain vehicles (less than 

3,000 lbs. G.V.W.);

    (ii) The width of a trail easement shall be no more than 50 feet if 

the uses to be accommodated are for travel by large all-terrain vehicles 

(more than 3,000 lbs. G.V.W.), track vehicles and 4-wheel drive 

vehicles, in addition to the uses included under paragraph (b)(2)(i) of 

this section;

    (iii) The width of an existing road easement shall be no more than 

60 feet if the uses to be accommodated are for travel by automobiles or 

trucks in addition to the uses included under paragraphs (b)(2) (i) and 

(ii) of this section. However, if an existing road is wider than 60 

feet, the specific public easement may encompass that wider width. For 

proposed roads, including U.S. Forest Service logging roads, the width 

of the public easement shall be 100 feet, unless otherwise justified. 

Prior to construction, trail uses which are included under paragraphs 

(b)(2) (i) and (ii) of this section may be permitted if otherwise 

justified and may continue if the road is not built. If after the road 

has been constructed a lesser width is sufficient to accommodate the 

road, the Director shall reduce the size of the easement to that width.

    (iv) The width of a proposed railroad easement shall be 100 feet on 

either side of the center line of any such railroad.

    (3) Site easements. Site easements which are related to 

transportation may be reserved for aircraft landing or vehicle parking 

(e.g., aircraft, boats, ATV's, cars, trucks), temporary camping, loading 

or unloading at a trail head, along an access route or waterway, or 

within a reasonable distance of a transportation route or waterway where 

there is a demonstrated need to provide for transportation to publicly 

owned lands or major waterways. Temporary camping, loading, or unloading 

shall be limited to 24 hours. Site easements shall not be reserved for 

recreational use such as fishing, unlimited camping, or other purposes 

not associated with use of the public easement for transportation. Site 

easements shall not be reserved for future logging or similar operations 

(e.g., log dumps, campsites, storage or staging areas). Before site 

easements are reserved on transportation routes or on major waterways, a 

reasonable effort shall be made to locate parking, camping, beaching, or 

aircraft landing sites on publicly owned lands; particularly, publicly 

owned lands in or around communities, or bordering the waterways. If a 

site easement is to be reserved, it shall:

    (i) Be subject to the provisions of paragraphs (b)(1) (ii), (iii), 

(vi), (xii), (xiii), and (xiv) of this section.

    (ii) Be no larger than one acre in size and located on existing 

sites unless a variance is in either instance, otherwise justified;

    (iii) Be reserved on the marine coastline only at periodic points 

along the coast where they are determined to be reasonably necessary to 

facilitate transportation on coastal waters or transportation between 

coastal waters and publicly owned uplands;

    (iv) Be reserved only at periodic points on major waterways. Uses 

shall be limited to those activities which are related to travel on the 

waterway or to travel between the waterway and publicly owned lands. 

Also, periodic site easements shall be those necessary to allow a 

reasonable pattern of travel on the waterway;

    (v) Be reserved for aircraft landing strips only if they have 

present significant use and are a necessary part of a transportation 

system for access to publicly owned lands and are not suitable for 

reservation under section 14(c)(4) of the Act. Any such easement shall 

encompass only that area which is used for takeoffs and landings and any 

clear space around such site that is needed for parking or public 

safety.

    (c) Miscellaneous easements. The public easements referred to in 

this subsection which do not fall into the categories above may be 

reserved in order to continue certain uses of publicly owned lands and 

major waterways. These public easements shall be limited in number. The 

identification and size of these public easements may vary from place to 

place depending upon particular circumstances. When not controlled by 

applicable law or regulation, size shall not exceed that which is 

reasonably necessary for the purposes of the identified easement.



[[Page 189]]



Miscellaneous easements may be reserved for the following purposes:

    (1) Public easements which are for utility purposes (e.g., water, 

electricity, communications, oil, gas, and sewage) may be reserved and 

shall be based upon present existing use. Future easements for these 

purposes may also be reserved, but only if they are site specific and 

actually planned for construction within 5 years of the date of 

conveyance;

    (2) Easements for air light or visibility purposes may be reserved 

if required to insure public safety or to permit proper use of 

improvements developed for public benefit or use; e.g., protection for 

aviation or navigation aids or communications sites;

    (3) Public easements may be reserved to guarantee international 

treaty obligations or to implement any agreement entered into between 

the United States and the Native Corporation receiving the conveyance. 

For example, the agreement of May 14, 1974, related to Naval Petroleum 

Reserve Number Four (redesignated June 1, 1977, as the National 

Petroleum Reserve-Alaska) between the United States Department of the 

Navy and the Arctic Slope Regional Corporation and four Native village 

corporations, shall be incorporated in the appropriate conveyances and 

the easements necessary to implement the agreement shall be reserved.

    (d) Conveyance provisions. (1) Public easement provisions shall be 

placed in interim conveyances and patents.

    (2) Permissible uses of a specific easement shall be listed in the 

appropriate conveyance document. The conveyance documents shall include 

a general provision which states that uses which are not specifically 

listed are prohibited.

    (3) The easements shall be identified on appropriate maps which 

shall be part of the pertinent interim conveyance and patent.

    (4) All public easement shall be reserved to the United States and 

subject, as appropriate, to further Federal, State, or municipal 

corporation regulation.

    (5) All conveyance documents shall contain a general provision which 

states that pursuant to section 17(b)(2) of the Act, any valid existing 

right recognized by the Act shall continue to have whatever right of 

access as is now provided for under existing law.



[43 FR 55329, Nov. 27, 1978]