SOCIETY OF AMERICAN Western January/February/March 2018 Oregon • Washington State • Inland Empire • Alaska Societies Volume 63 • Number 1 Rights or No Rights: An Overview of Access in the Pacific Northwest

BY MEGHAN TUTTLE

This issue of the Western Forester is dedicated to ease- ments and rights-of- way. It is often the responsibility of a forester to adminis- ter, resolve, and understand underlying property and access. Frequently, in the Pacific Northwest are not accessible by public road alone, and specific rights must be secured for different manage- ment activities including recreation, development, and utility access. Furthermore, access agreements are often perpetual in nature and last long past harvest rotations, federal regula- PHOTO COURTESY OF OR/WA BLM ARCHIVES tion updates, or ownership changes, so roads provide access for management, recreation, and other uses. we must understand the long-term impacts of these agreements. county recording fees. underlying landowner is identified. Included in this issue is an overview In an interview format we hear a Federal access issues are integral in on standard best practices for issuing a surveyor’s perspective on the impor- Pacific Northwest typical easement, written by tance of developing accurate legal because of the nature of federal own- Kirk Maag at Stoel Rives LLP. Kirk dis- descriptions for successful easements. ership patterns, as discussed by cusses basic components for drafting Using a surveyor at the beginning of authors Cheryl Adcock of the BLM and an effective easement, including a an easement negotiation is effective to Mark Peterson of the US Forest clear definition of use, timing consid- avoid disputes, since a correct legal Service. The history of the BLM O&C erations of the agreement, and writing description limits the scope of the lands shows how our use of forestland of maintenance or repair obligations. easement to a location field verified by can change over time. Federal access When negotiating an easement, it is the surveyor. When evaluating a laws are particularly complex to important to understand the needs of potential easement, it is vital to guar- address forest access needs for multi- both parties. Since easements are per- antee that other underlying easement ple stakeholders. Mark’s Forest Service manent documents, they should be rights already granted do not interfere Cooperative article focuses on the prepared or reviewed by an attorney with the proposed use, and a surveyor implementation of USFS access after familiar with land-use laws in your plays a role in this. Additional due dili- rulemaking is complete, and highlights area. It is also important to consider all gence in researching title records must the importance of collaboration and costs associated with easements, be performed to ensure that an ease- value of joint infrastructure invest- ment right is grantable and the correct including surveying, construction, and (CONTINUED ON PAGE 2)

In This Issue: Reciprocal Rights-of-Way the agreements, but the regulations should be included. Cooperative Rights or No Rights: An that each agency or landowner must maintenance agreements can be used Overview of Access follow, as they can be different. in both private and federal easements. (CONTINUED FROM FRONT PAGE) To manage road easements effec- Defining and implementing a mainte- ments made over decades. When man- tively, a maintenance agreement that nance plan is particularly important aging checkerboarded ownership, it is defines responsibilities and rights when multiple parties may use a road necessary to fully understand not only between the grantor and grantee concurrently; the plan should also explain how costs are allocated. After an easement is executed, our TTERBURY CONSULTANTS, INC. work as forest managers is not finished “Professional State-of-the-Art Forestry“ Beaverton, Oregon A as collaboration between access part- www.atterbury.com • 503-646-5393 ners is ongoing. The same principles used in negotiating easement agree- Appraisals & Consulting Cruising & Inventory ments are required to successfully • Harvest Level Projections • Foresters are Highly Trained with Current manage agreements long term. • Due Diligence Technology • Timberland Sales • Tract, Stand, & Log Volume, Stocking, & Communicating intent with the • Loan Analysis & Monitoring Statistics Analysis underlying landowner before utilizing • Supply Studies • an existing easement, holding annual • Software Support • Database Development maintenance meetings, and collabo- GIS Mapping & Analyses Seminars & Training rating on shared easement costs will • Mill, Public, & Large Landowner Locations • Continuing Education Credit help meet all landowners’ needs. • Custom Maps & GIS Data • ArcPad in 1 day This issue of the Western Forester • Overlay process, View & Watershed Analysis • Professional Timber Cruising highlights how easements and rights • 3D Mapping • SuperACE • Individual or Group Training Available of way impact all of us and the impor- tance of understanding processes to Software & Products be effective when developing and • Timber Cruising–SuperACE & Pocket SuperEASY • ESRI & MapSmart maintaining easement agreements. ◆ • Forestry Tools, Rangefinders, BAF Devices, Data Collectors & GPS Units Meghan Tuttle is Western Environmental Affairs manager for Weyerhaeuser, based in Salem, Ore. She currently serves as chair-elect for Oregon SAF. Western Forester She can be reached at 971-273-2461 or Society of American Foresters [email protected]. 4033 S.W. Canyon Rd. • Portland, OR 97221 • 503-224-8046 • Fax 503-226-2515 Meghan served as guest editor for this www.nwoffice.forestry.org/northwest-office/western-forester-archive issue. Editor: Lori Rasor, [email protected] Western Forester is published four times a year by the Oregon, Washington State, Inland Empire, and Alaska Societies’ SAF Northwest Office

State Society Chairs Northwest SAF Board Members Oregon: Fran Cafferata Coe, 503-680-7939, District 1: Tom Hanson, Forestry and [email protected] Consultant, ArborInfo LLC, 206-300-9711, [email protected]; Washington State: Paul Wagner, www.ArborInfo.com 360-436-0089, [email protected] District 2: Mike Cloughesy, Oregon Forest Inland Empire: Phil Aune, 509-464-1409, Resources Institute, 503-329-1014, [email protected] [email protected] Alaska: Jeremy Douse, CF, 907-452-8251, [email protected]

Please send change of address to: Society of American Foresters, 10100 Laureate Way, Bethesda, MD 20814 [email protected]

Anyone is at liberty to make fair use of the material in this publication. To reprint or make multiple reproduc- tions, permission must be obtained from the editor. Proper notice of copyright and credit to the Western Forester must appear on all copies made. Permission is granted to quote from the Western Forester if the customary acknowledgement accompanies the quote. Other than general editing, the articles appearing in this publication have not been peer reviewed for techni- cal accuracy. The individual authors are primarily responsible for the content and opinions expressed herein.

Next Issue: Fuels Management

2 WESTERN FORESTER ◆ JANUARY/FEBRUARY/MARCH 2018 WESTERN FORESTER ◆ JANUARY/FEBRUARY/MARCH 2018 3 grantee obtained an easement or fee Don’t Get Locked Out: Securing simple ownership, the easement agreement should use the term “grant” Access with Easements rather than “convey” (e.g., “Company A grants to Company B a permanent, ments are generally irrevocable within non-exclusive easement to use the BY KIRK B. MAAG their specified term—whether the road described below.”). Some ease- term is perpetual or limited—they are ment agreements contain a section orestland parcels an effective mechanism for securing titled “Recitals” or “Purpose” in which in the Pacific enforceable access. the parties describe the reason for the NorthwestF often are In contrast to the limited use easement. In the event of a dispute not accessible by allowed under an easement, fee simple between the parties, this section can public roads alone. ownership represents full ownership of be helpful in interpreting the scope of This means forest- the land. That is, once a grantor con- the easement. land owners must veys fee simple ownership without Finally, an easement agreement frequently cross reservation, the grantor no longer should clearly describe any terms and property owned by other parties, owns any interest in the land con- conditions desired by the parties, such including private owners, tribes, and veyed. This distinction is important as those described below. Anyone who local, state, and federal governments. because one of the attributes of fee is entering into an easement agree- While informal agreements among simple ownership is the right to ment should consult the laws of the landowners may provide quick and exclude. This means that a grantor jurisdiction in which the property at easy access, these agreements are gen- who inadvertently conveys fee simple issue is located because the applicable erally terminable at will and are ownership to a road across the laws vary somewhat across jurisdic- unlikely to be legally enforceable. grantor’s property could thereafter be tions. Failure to obtain enforceable access excluded from using the road. Type of Easement. Easements can rights can increase the cost of access- benefit a specific parcel of land ing forestlands, lead to litigation, or Drafting an easement (appurtenant easements) or can be worse, make these lands inaccessible agreement unrelated to any particular parcel of (except perhaps by air). This can be Given that easements are often property (easements in gross). An particularly problematic in the context long-term agreements authorizing the appurtenant easement is inseparable of harvesting timber, which may use of a valuable asset, parties should from the benefited parcel of land. For require road improvements and lead take particular care when drafting example, in most (if not all) jurisdic- to increased traffic. Easements provide easement agreements. An easement tions, an access easement that is a mechanism for securing clear, agreement should be in writing and appurtenant to forestlands remains enforceable rights. should include precise language. The appurtenant to those lands even if the An easement is a nonpossessory agreement should identify the party forestlands are sold to another party, interest in the land of another party granting an easement (the grantor), unless the easement agreement limits that entitles the easement holder to the party receiving the easement (the the transferability of the easement. use the property of another for a par- grantee), and any other parties who On the other hand, an easement in ticular purpose without interference. eceiving benefits under are giving or r gross cannot typically be assigned to For example, an easement could pro- the agreement. The grantor must be another party. For example, if a tim- vide Company A (a timber buyer) with the current owner (or owners) of the ber company obtained an easement access to timber located on Company property to be burdened by the ease- in gross to access certain timber it B’s property across a private access ment. An easement agreement that purchased, the timber company road located on Company C’s property. fails to correctly identify the grantor might be unable to sell the easement Alternatively, an easement could grant might be unenforceable. To correctly to another party. Company D (a forestland owner) the identify the current owner, it is often Use of the Easement. When draft- right to construct a road across helpful to enlist the services of a title ing an easement agreement, the par- Company E’s property to access company and an attorney. ties should consider current and Company D’s property. Because ease- To avoid disputes about whether a future access needs, and identify the limits on the rights of use, including use by the grantor, the grantee, and Certifiably Proud third parties. Unless the agreement of the Washington states that the easement is exclusive, Farm Program the grantor may continue to use the land underlying the easement in any manner that is consistent with and does not unreasonably interfere with www.greencrow.com the grantee’s rights. The parties can also specify whether the grantee’s

4 WESTERN FORESTER ◆ JANUARY/FEBRUARY/MARCH 2018 access rights are limited to personal area, such as improvements to an chaser knew of the easement’s exis- use or whether they extend to com- existing road. If the grantee is author- tence, making the easement enforce- mercial use. An easement that does ized to make improvements, the able against the purchaser. not extend to commercial use could agreement should specify whether The parties can record an easement limit the grantee’s ability to sell tim- the parties will share in the costs of agreement at the county recorder’s ber or charge for recreation or hunt- such improvements. office. To record an easement, certain ing access. Taxes. Because easements are not conditions must be met, and these con- Location. An easement agreement taxed separately, the parties should ditions will vary across jurisdictions. The should contain a full legal description determine whether the grantee will signature of the grantor generally must of the underlying property. The parties pay the grantor for a portion of the be acknowledged by a notary public; the should identify the location of the taxes. This is particularly important if easement agreement must conform to easement on a map, plat, or scale the easement increases the value of certain formal requirements, such as drawing and attach the identifying the grantor’s property. formatting, and payment of required document to the agreement. For an Remedies. Unless otherwise stated, fees. A person should call the county access easement, the parties should failure to abide by the terms of an recorder to determine the statutory for- identify the center line of the ease- easement agreement generally will not mat and fee requirements before ment and specify its width. If the ease- result in termination of the easement. attempting to record an easement. ment requires the grantee to construct Instead, courts will typically award a road, the width of the easement damages or order a party to stop cer- Absence of a written easement should be sufficient to accommodate tain offending activity. The parties can, Absence of a written easement construction. for example, require that disputes be agreement does not necessarily mean Payment. The easement agreement resolved through arbitration or that that a forestland owner lacks access should state whether the grantor the losing party pay the attorneys’ fees rights. A party may, in some cases, received any cash (or other valuable of the prevailing party. establish access rights under other benefit) for granting the easement. If theories such as prescription, implica- there is a dispute between the parties Recording an easement tion, and necessity. The conditions regarding the scope of the easement, a As a best practice, parties should that must be satisfied to establish such court may use this to help ascertain record all easement agreements with rights will vary across jurisdictions, but the parties’ original understanding. the county where the burdened prop- these conditions are often difficult to Duration. The parties should identi- erty is located, making the easement prove and may require legal action to fy whether the easement is permanent part of the public record. establish. As such, forestland owners or for a limited duration. Unless other- Nevertheless, an easement need not should not rely on their belief that they wise specified, the easement continues been recorded to be enforced between have acquired such an easement. in perpetuity or until abandoned. Thus, the original grantor and grantee. The A properly drafted and recorded ease- the parties should define what consti- benefit of recording is to ensure the ment agreement will secure long-term, tutes abandonment. If the easement is easement agreement is enforceable enforceable access to forestlands. ◆ for a limited duration and for the pur- against subsequent owners of the bur- pose of harvesting timber, the grantee den property. If an easement agree- Kirk B. Maag is a partner for Stoel should ensure that the easement ment is not recorded, the purchaser of Rives LLP,focusing on natural extends long enough to accommodate property burdened by the easement resources and environmental law. delays in activity. may challenge the easement for lack He can be reached at 503-294-9546 Maintenance, Repairs, and of notice. But if an easement is record- or [email protected]. Damages. The easement agreement ed, courts will assume that the pur- should identify who is responsible for maintenance, repairs, and damages. For example, if the agreement allows the grantee to use an existing road on the grantor’s property, the agreement should specify which party is responsi- ble for maintenance and repairs. Because it is possible that the grantee’s use of an existing road or construction of a new road could damage the grantor’s property, the easement should identify the party who bears the burden of such damages. Improvements. The easement agreement should state whether the grantee is authorized to make improvements within the easement

WESTERN FORESTER ◆ JANUARY/FEBRUARY/MARCH 2018 5 Cost-share Agreements Pave the Way to Cooperative Ownership of Forest Roads

BY MARK PETERSEN

oad Right of Way Construction Rand Use Agreements (RRCUA) are cooper- ative agreements between industrial timberland owners (Cooperators) and the US Forest Service. These coop road agreements have been in existence since the 1950s, and over time, have been updated and modified. The RRCUA provides a set of provisions that allows the Cooperator and the Forest Service to exchange all lawful purpose easements over lands and roads they each control to provide PHOTO COURTESY OF MARK PETERSEN access for natural resource manage- Cost-share agreements provide the mechanism for one road system to be ment. The Forest Roads and Trails Act used to access intermingled lands. Shown here are two roads that lead to private property. In a cooperative agreement, only one road is constructed, of October 13, 1964, provides the legal thus eliminating miles of road on the landscape. authority to enter into this type of agreement. Acquiring legal and per- the capital costs of the roads involved Once a Cooperator is qualified, an manent access to intermingled tim- to acquire an easement became the agreement area is developed. The berlands allows foresters and land basis for the RRCUA. As industrial tim- agreement area is the physical area managers the luxury of planning any berland owners and the Forest Service where the parties agree to jointly type of use on the lands they own or agreed to the idea of sharing road con- develop a road system(s) and where manage, now or in the future, with struction costs, numerous versions of there is need for additional road con- costs shared based on use. the process were developed and imple- struction to occur to access lands suit- The idea for cooperative road devel- mented; however, not all agreements able for management. Construction opment was brought about when were uniform or consistent. Because of costs for new or existing roads are industrial timberland owners and the the various versions, the Forest Service shared based on the percentage of Forest Service began developing trans- and Cooperators developed a national lands each party owns or controls that portation systems to access timber- agreement, the RRCUA, with 18 provi- are tributary to the roads involved. lands for harvesting in the 1950s and sions that describe the methods and The elements of costs, and opera- 1960s. As road systems were being procedures to share costs of the roads tional and financial obligations for developed, the parties soon realized a involved. each party, are described and agreed single road system would be most effi- The purpose of RRCUAs is to pro- to in a Supplement to the Agreement, cient to access the intermingled vide access to timberlands for man- as are other items including the road landownership. The concept of sharing agement. Cooperators must qualify standard, design elements, traffic con- and meet requirements identified in trol for the public, and previous capi- the Forest Service directives to partici- tal contributions. It is signed by each HOPKINS FORESTRY pate in a RRCUA; not all industrial party and is a contract between the Forest Managers performing herbicide timberland owners meet the criteria. two parties. A Supplement to the application, young stand management, harvest management, contract compliance, The most common reasons landown- Agreement is written any time the inventories, and forestry/natural ers don’t qualify to be a Cooperator parties agree to share capital costs resources education include: they don’t own a significant associated with a road within the amount of timberland to make offset- agreement area. TR 4ES ting costs economical; easements with Once a supplement is executed, FORES TMGR acceptable title cannot be granted to easements can be exchanged for seg- the United States; or there is no long- ments of roads included in the supple- Dick & Paula Hopkins 360-492-5441 term need for road construction in the ment. There are two types of cost- [email protected] area. share easements: one from the

6 WESTERN FORESTER ◆ JANUARY/FEBRUARY/MARCH 2018 Cooperator to the USA and one from costs are shared two ways: 1) on the vide to the parties. Even though the the USA to the Cooperator. The lan- percentage of lands tributary to the agreements contain a termination guage and clauses in the cost-share road(s); or 2) on the amount of traffic clause, agreements are rarely unilater- road easements have been agreed to attributed to each party for the road(s) ally terminated. When it does occur, it by the Cooperators and the Forest involved. Annually the parties docu- is usually because the lands within an Service and their legal counsel. The ment and agree to various road main- agreement area are sold or transferred easements are standard format and tenance necessary to maintain and and a new owner does not qualify as a cannot be changed without approval preserve the roads for future use. The Cooperator. Easement exchanges and from both parties. Cost-share ease- annual plan contains the costs, per- road maintenance still occur between ments are perpetual and provide for all forming party, each party’s share of the landowner and the Forest Service lawful purposes. However, cost-share the costs, and how the costs will be absent the Coop Road Agreements. easements are unique from nearly all amortized. The Cooperative Road When this situation occurs, the costs other easements because they are con- Maintenance Agreement is currently are not shared or carried on a balance sidered an easement in gross; the ben- being updated and amended; the last sheet, and the costs of the easement efitted lands (dominant tenement) are modification was in 1992. are due at the time the easement is not described in the easement itself. Today, more than 25 Cooperators in granted. The intent of cost-share easements is various western states are party to The cost-share road agreement will to provide access to lands now owned either an RRCUA or a Cooperative continue to be a valuable tool to or hereafter owned or controlled. This Road Maintenance Agreement. Cooperators and the Forest Service. concept was discussed in depth as the Nationally, there are over 40,000 miles The Road Right of Way Construction original agreement template was of cost-share roads with a value over and Use Agreement is considered an negotiated between the Cooperators $100 million. Cost-share roads provide “agreement to agree” and this cooper- and the Forest Service; as road systems access for the general public to mil- ative agreement, with its hundreds of were being designed and developed, lions of acres of Cooperators’ and miles of road systems, has delivered the parties agreed to the concept that National Forest System lands. countless millions of board feet of one easement would provide all the For the past several years, Coopera- timber to across the west. ◆ necessary legal access as long as the tors and Forest Service personnel have capital costs were documented in a attended a national meeting in the Mark Petersen is Region 1 Cost Share Supplement to an Agreement. The Portland, Ore., area to discuss and Program manager based on the cost-share easements identify the negotiate all matters related to Coop Kootenai National Forest in Libby, Forest Service as having jurisdiction Road Agreements. Meeting annually Montana. He can be reached at 406- and control of the road like all other has greatly improved prior issues and 283-7785 or [email protected]. National Forest System roads. limitations related to the agreements. Mark is a 24-year member of SAF. For example: The easement the The future of cost-share road agree- Cooperator grants to the Forest Service ments looks to remain strong because includes the right to extend rights and of the advantages the agreements pro- privileges, across the Cooperator’s land, to other road users. The ease- ment the USA grants to the Cooperator does not include these rights, the USA keeps the rights to grant to others. The Seedling Nursery Since 1974 Cooperator also grants to the Forest Service access rights for the general We bring experience with owners that care about their product and customers. public to use the road. The Cooperator Approximately 10 million seedlings in annual production and Forest Service agree to traffic con- trol rules and regulations for the pub- 1 container site (plugs), 2 bareroot/transplant sites (p+1, 1+1) lic’s use of the road. This arrangement Contract growing and spec seedlings for forestry and Christmas tree production allows the Forest Service to manage the traffic and use on the road without LET US GROW YOUR SEEDLINGS interfering with the Cooperator’s right to use the road. David Gerdes Mike Gerdes [email protected] Sharing road maintenance costs The RRCUA also requires the parties FORESTERS • NURSERYMAN • SEEDSMAN to enter into a separate Cooperative Road Maintenance Agreement to for- mally agree to and document the vari- SILVASEEDP.O. Box 118 • Roy,WA 98580 COMPANY • (253) 843-2246 ous costs of maintaining the roads within an RRCUA. Road maintenance “Serving Many of the Reforestation Needs of the World From This Location Since 1889”

WESTERN FORESTER ◆ JANUARY/FEBRUARY/MARCH 2018 7 Oregon’s Long and Checkered History

BY CHERYL ADCOCK

s stewards of a majority of AAmerica’s public lands, the Bureau of Land Management (BLM) is dedicated to providing access to as many of these lands for as many uses as possible— this includes such things as hunting, fishing, hiking, mineral development, and yes, timber production. Western Oregon, with its complicated checker- board ownership pattern, relies on a wide range of methods to ensure access to America’s public lands. A typical steam engine used on O&C lands. Unfortunately, not all access is created equal, with some methods securing rights for all uses, including public recreation, and some only securing rights for administrative purposes. The “O&C” access policy is an example of the exchange of administrative access, where public rights have not yet been exercised. The history of these lands provides an understanding of why the policy focused solely on timber man- agement and does not include public rights. The 2.5 million acres of BLM- administered lands in western Oregon, referred to as O&C lands after the Oregon and California Railroad grants, are predominately timbered and are intermingled or checkerboarded with private industrial parcels. A section in PHOTOS COURTESY OF OR/WA BLM ARCHIVES the checkerboard is typically one mile Historic logging on O&C lands. on a side and encloses approximately 640 acres. About half of the public Portland, Ore. Access to these lands for from 40 to 60 miles wide along the domain lands are scattered and inter- both the BLM and industry have his- railroad line and included just over 3.7 mingled with O&C lands, and the torically been driven by the mutually million acres. After an uneven start by other half exist as larger blocks in the beneficial need to manage these the railroad company, the grant was Salem, Coos Bay, and Lakeview BLM forests. This requirement by both the amended to require the railroad meet Districts—with the majority being federal government and private three conditions regarding land dispo- concentrated in the Klamath Falls landowners to access their forests ulti- sition: 1) the land had to be sold to Field Office of the Lakeview District. mately became the genesis of the O&C bona fide settlers; 2) no more than 160 access policy. acres could be sold to any one person; Origin of the checkerboard In the 19th Century, Congress pro- and 3) the land could not be sold for The history of the O&C lands goes vided subsidies in the form of land more than $2.50 per acre. all the way back to 1866 when grants to states to support the cost of Construction of the railway was Congress established a land grant to the construction of railroads and to begun by the Oregon and California promote rapid completion of a rail- encourage westward expansion. The (O&C) Railroad and completed by the road line connecting the Central 1866 land grant was for all odd-num- Southern Pacific Railroad Company Pacific line in Marysville, Calif., to bered sections of federal land in a strip that acquired the O&C Railroad in

8 WESTERN FORESTER ◆ JANUARY/FEBRUARY/MARCH 2018 1887. Although the rail line was even- It came at a cost distributed to both the O&C counties tually completed, both companies The Southern Pacific Railroad and the US Treasury. This strategy managed to violate all three land dis- Company ceased paying taxes to the resulted in the government managing position rules. These violations went O&C counties in 1913, and because of over 5,000 separate parcels of land in uncontested until the Southern Pacific the lengthy injunction, ultimately western Oregon for timber production. Railroad decided to cease further sales owed the counties nearly $1.6 million To put these immense access chal- of the grant land to retain ownership for the taxes left unpaid from 1913 to lenges and public needs into perspec- of the increasingly valuable timber. 1915. Additionally, the federal govern- tive, in 1937 the population of Oregon The Oregon Legislature believed the ment had to pay the Southern Pacific was around one million—81 years cessation of land sales by Southern Railroad just over $4 million for the later there’s nearly 4.1 million individ- Pacific would curtail further develop- remainder of its equity. To raise these uals with interest in these lands. ment in the state and asked for help funds, homesteading was encouraged, Private forests had already been from the federal government. The US but during World War I and the early developed and sale of federal timber Attorney took the railroad to court, post war period, sales of these revested was essentially made at the request of claiming the remaining unsold lands lands for homesteading dropped to those landowners. Prior to 1948, feder- on behalf of the US. Seven years of liti- their lowest levels. al timber was sold without legal gation followed, culminating in a deci- The 1930s saw a growing concern access, resulting in approximately 85 sion by