SOCIETY OF AMERICAN FORESTERS Western Forester 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, forests 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 Forest 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 forest management typical forestry 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 • Wood Supply Studies • Reforestation 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. N • 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] Arboriculture 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 N JANUARY/FEBRUARY/MARCH 2018 WESTERN FORESTER N 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 FNorthwest 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