Access Road Easement Policy
Montana Board of Land Commissioners
August 16, 2004
Introduction
It is the intent of the Access Road Easement Policy to amend and replace the Private Driveway Policy adopted by the Montana Board of Land Commissioners [Board] on June 19, 1995. During the years the Private Driveway Policy has been in effect, changes have occurred in easement statutes enacted by the state legislature. The passage of several laws may be construed as providing inconsistent application of the Private Driveway Policy in the review and processing of easement applications for access roads by the Montana Department of Natural Resources and Conservation [Department].
The Access Road Easement Policy is developed by the Board and Department for the purpose of guiding applicants and the Department in the review and processing of applications for easements providing access to private lands for multiple uses. The policy may be used by an easement applicant or Department personnel to evaluate the prospect of obtaining a favorable review by the Board.
The criteria and text contained within this policy are intended as guidance only. Legal requirements, which shape the Board's review of all easement applications, are found with the Montana Constitution, state statutes and administrative rules.
Generally, access roads upon state trust lands may be granted for single or multiple family residences, farm and ranch management, timber resource management or all lawful purposes. Right-of-way grants for access roads enhance the value of private property while detracting from the value of the state land. While the State receives full market value for the property interest disposed of, this value often does not offset the encumbrance placed on trust land. Furthermore, rights-of-way reduce the flexibility of state land management while increasing the risk of liability to the State. Since the duty of the Board and Department is to act as trustees and protect the long-term productivity of trust lands for the beneficiaries, care must be taken to create situations where rights-of-way benefit the trust. Means of minimizing detriment to the trust when granting rights-of-way include consideration of alternative road location, assurance that environmental impacts are mitigated, and evaluation with reference to a specified set of criteria.
The evaluation criteria contained in this policy generally articulate existing board policy with respect to access roads and will be applied to all applications received after the effective date of this policy. Typically, easements for access roads will be perpetual. However, the Board and the Department reserve the right to grant limited term easements to protect the long-term interests of the trust. Such term easements shall not exceed a term of 99 years. Applicants will be given the opportunity to discuss the merits of a grant for perpetual easement, rather than a limited term easement, before the Board.
Grantees of easements issued under the former Private Driveway Policy will be given the opportunity to request amendment of the purpose of their existing term easement to all lawful purposes. Additionally, the Department may provide any such grantees with a corrected easement document from the Department negating the 30-year limited term imposed on their access road easement through the former Private Driveway Policy.
Given the broad discretion granted by the Board, the criteria set forth below will assist the applicant and Department in evaluating how the Board will review the merits of a particular access application. The process of submitting and reviewing a right-of-way application is costly and time-consuming. Applicants who study this policy and evaluate the merits of a proposal prior to submitting an application will avoid the costs and frustration of an unfavorable review by the Department or Board.
Review and Evaluation by the Department
Before an application fee is received from an applicant, field staff should provide the applicant a copy of this policy. Before an applicant goes to the expense of surveying a proposed road (unless waived by the Department pursuant to §77-1-617), field review should be conducted by staff to determine the purpose and necessity of the right-of-way, as well as potential locations of alternative access that minimize or eliminate impact to state lands. Any permits required by other state and/or local authorities should be applied for by the applicant prior to review of the application for easement. See evaluation criteria number three below.
Applicants for access easements should submit proof of current ownership of private land to be accessed and maps detailing current land ownership adjacent to the affected state tract. Applicants are responsible for providing any information necessary for Department review pursuant to the evaluation criteria, including documentation of the applicant's legal access to the state tract and alternative access, if any, to the applicant's property. An applicant may be required to provide additional information upon request by the Department, including information necessary to complete the Department's environmental assessment.
Department personnel should evaluate an application for consistency with this policy and provide a recommendation to the Board for approval or denial. Department staff will provide the Board with an explanation supporting their recommendation that addresses how the application satisfies or fails to satisfy the criteria.
Access Road Evaluation Criteria
The Board and Department will review applications for easements for access roads considering the following criteria:
• Whether the granting of the easement will enhance the school trust asset;
• Easement impacts on the capacity of the affected trust lands to produce revenue and the extent to which the routing of the proposed easement mitigates impacts. As a practical matter, easement routes that follow state section lines or minimally cross state section corners are preferred;
• Compliance with all applicable federal, state, and local laws. The applicant should demonstrate the extent to which the proposed easement is consistent with federal, state and local management plans;
• Whether applicant has provided signed documentation of settlement of damages of leasehold interests of state surface lessees, if any, or can demonstrate that such settlement is being negotiated;
• Whether the easement applicant will grant the State of Montana a reciprocal easement to access lands managed by the Department;
• Whether the applicant already has legal access to their property across private or public land:
• In situations where the applicant has legal access to their property, applications for easements across trust lands are discouraged and will be presumed to be disadvantageous to the State. The applicant may overcome this presumption by clearly demonstrating either of the following through written documentation accompanying the application:
• Impacts to state trust land are insignificant; or
• The construction and routing of alternative access across private property is impossible/impractical;
• In situations where the applicant does not have legal access to their property and the property interest was acquired without legal access, applications are discouraged. The Department may consider applications in extraordinary circumstances;
• In situations where the applicant does not have legal access, but the property was purchased with access that was subsequently lost, the applicant should attempt to purchase alternative access from neighboring land owners prior to submitting an application. In these situations, the Board may consider more favorably those applications that include written documentation of attempts to purchase access from all adjacent land owners;
• The environmental impacts of the proposed easement, as demonstrated by the Department's Montana Environmental Policy Act [MEPA] analysis or other sources of information reflecting visual, social, historical or cumulative environmental impacts; and
• Applications for "after-the-fact" easements for roads that were constructed or established in trespass after October 1, 1997 are discouraged and approval will be withheld except in extraordinary circumstances. The merit of rights-of-way for roads established without approval prior to October 1, 1997 will be evaluated on a case-by-case basis with reference to these criteria.
Final Review and Approval by the Board
When the Department and applicant have generated all information necessary for the Board's decision, the information will be reviewed and a determination made whether the proposed right-of-way is advantageous to the State. It is the Board's duty to disapprove any application that, in its opinion, would be disadvantageous to the State. The Board shall state its reasons for disapproving any access road application and such reasons will be reflected in the minutes of the Board Meeting.
Any easement that is granted will be restricted to the particular use(s) and corridor width applied for by the applicant. Any change or expansion of permitted use(s) and/or easement corridor without authorization from the Department subjects the easement to reversion by the state. A right-of-way grantee may submit an application for an amended easement if a need arises for uses or additional width needed that was not contemplated by the original easement.
Approved by the Board and effective this 16 th day of August, 2004.
Signed: _________________________________________
Arthur R. Clinch
Director, Department of Natural Resources and
Conservation
