5460

5400-92-1

Page 1 of 9

FOREST SERVICE MANUAL

RUSSELLVILLE, AR

TITLE 5400 - LANDOWNERSHIP

OZARK SUPPLEMENT NO. 5400-92-1

Effective 04/10/92

POSTING NOTICE. SUPPLEMENTS to this MANUAL are numbered consecutively. Check the last transmittal received for this manual to see that the above supplement number is in sequence. If not, order intervening supplements at once on form FS-1100-6. Do not post this supplement until the missing one(s) is received and posted. After posting retain this transmittal until the next supplement to this manual is received. Place it at the front of the manual behind the title page.

Superseded New

Page Code (Number of Sheets)

5460.3 1 0

5461.2 1 0

5462--1 thru 5462--11 6 0

5463 1 0

5460 0 9

Digest:

No correction to the text; only correcting the format of this supplement. Remove existing supplement (green pages) to this chapter and place this document at the end of the chapter.

LYNN C. NEFF

Forest Supervisor

FSM 5400 - LANDOWNERSHIP

OZARK SUPPLEMENT 5400-92-1

EFFECTIVE 04/10/92

5460 - RIGHT-OF-WAY ACQUISITION

5460.2 - Objectives

4. Complete all Right-of-Way acquisitions at least one year prior to their need or for timber sales at least one year prior to the advertising date.

5460.3 - Policy. Seven basic points of acquisition policy are stated in FSM 5460.3. In order to properly utilize our Right-of-Way acquisition efforts, it is essential that consideration be given to total access needs for the management and use of all resources. A coordinated effort involving transportation planning and timber sale planning provides maximum opportunities for development of the permanent road system. Where low volumes and values are common, it is especially important that this type of planning identify the contribution, however small, that each sale can make toward the development of the transportation system. Sale contributions, together with contributed FR&T funds, when they are available, can help meet access needs.

The transportation plan and compartment prescription establish where access is needed across private land. In each case where private land will be crossed, an easement in the name of the United States will be acquired before the timber is advertised for sale or sold by the District Ranger.

Cooperative Road Agreements will be obtained for County and State roads that are being maintained, reconstructed or constructed as part of the Forest Development System (FSM 7713.22). Such agreements will provide assurance of legal rights-of-way in the name of the county or state.

5461 - INTEREST TO ACQUIRE

5461.1 - Rights-of-Way for Roads or Forest Development Roads System. Acquire permanent, exclusive, unrestricted easements, which permit full multiple-use of the lands served as well as access for all National Forest users, for all arterial and collector roads as defined in FSM 7710.5.

5461.2 - Rights-of-Way for Roads That Are Not a Part of the Forest Development Road System. Term easements, restricted easements, or license agreements may be considered but they require prior approval by the Regional Forester. See FSM 5461.2 and R-8 Supplement No. 86 to FSM 5461.03a dated May, 1977. The Regional Forester has NOT delegated his approval authority and Regional policy is that a qualifying Right-of-Way will be considered only under the circumstances as shown in referenced R8 supplement.

5462 - PRINCIPLES AND GUIDELINES FOR ACQUISITION FROM PRIVATE LANDOWNERS.

1-7. These paragraphs are not supplemented.

8. An exception to mandatory compliance with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 states that appraisals of low value rights-of-way are not required unless:

--	A value loss will result to the landowner from the imposition of the right-of-way.
--	A right-of-Way in fee is to be acquired.
--	Condemnation action is anticipated.

9. Acquisition Process. The process that is to be followed in the acquisition of rights-of-way on the Ozark-St. Francis National Forests is set forth in Exhibit 1 and Exhibit 2.

10. Appraisal Needed. For those properties requiring an appraisal, the acquisition process as set forth in Exhibit 1.

11. Appraisal not needed. For properties not requiring an appraisal, the acquisition process is outlined in Exhibit 2.

12. Negotiations. Basic do's and don'ts are stated in seven numbered paragraphs in FSM 5462. Paragraphs numbered 1 and 2 relate to appraisals and compensation and they do not apply to negotiations when an appraisal is not needed.

The District Ranger is responsible in all instances for Rights-of-Way negotiations on his unit and for the direct supervision of the unit’s negotiator. The implementation and character of such negotiations have long lasting effects on public opinion and landowner attitudes toward the Forest Service.

5463 - CONDEMNATION. Condemnation will not be mentioned during negotiations (other than to answer a direct question by the landowner) until all reasonable efforts at negotiation have failed and the District Ranger has requested and obtained the written approval of the Forest Supervisor to inform the landowner that he is going to recommend that the right-of-way be acquired by condemnation.

Ranger's requests for condemnation will be in the form of a report that includes a topographic map of the area. The report and map must illustrate and fully explore the alternatives to condemnation and justify the use of condemnation procedures to acquire the easement. In condemnation instances it is mandatory to document all landowner contacts.

EXHIBIT 01

Rights-of-Way Acquisition Process - Appraisal IS Needed

Process	Responsibility	Lead Time (Months)
1. Review R/W need in prescription, Management Plan objectives, Transportation plan needs for area outside prescription boundaries.	Ranger	36
2. Primary and alternative road locations and construction class.	Ranger, Eng., Timber, Neg. ET	26
3. Contact landowner--explain management objectives for area, cutting plans, specific road needs, etc. Request landowner suggestions as to how best meet our road needs. Obtain permission for engineering tech. to flag and for appraiser to look at location(s) verbally agreed to by landowner and negotiator).	Neg. LO, ET	25
4. Submit OZ-5400-7 and legible topo map showing location(s) to S.O. Lands	Neg.	24
5. Appraiser will arrange and make field examination with negotiator (usually 10 days after receiving OZ-5400-7).	Lands, Neg.	24
6. Appraisers examination indicates that a full appraisal is needed and District is so notified	Lands	24
7. Obtain landowners permission to survey and for appraiser to re-enter property if necessary. Notify lands	Neg.	23
8. Title insurance ordered.	Lands	23
9. Submit field location report, survey request and corner cards to Engineering.	Neg.	22
10. Survey.	Eng.	22
11. R/W Plat to Lands.	Eng.	19
12. Collect Comparable Sale Data.	Ranger, Lands	19
13. Appraise R/W	Lands	18
14. Just Compensation Established.	Lands	17
15. Prepare Easement Deed & Just Compensation Statement.	Lands	17
16. Deed and case submitted to OGC for review (deed, plat, preliminary Title Cert., Cert. of Use & Consent, Cert. of Possession, and curative documents- if any.	Lands	16
17. Deed and related papers to District.	Lands	15
18. Title clearance. Deed signed, recorded, returned to S.O.	Neg., LO, Lands	15
19. Survey plat recorded in County Survey records and State Land Surveyor's Office	Eng.	15
20. Voucher Payment.	Lands, B&F	14
21. Obtain Final Certificate of Title	Lands	14
22. Final package to OGC. Signed deed, Final Title Certificate, Cert. of Possession, Cert. of Use and Consent, Closing Check List.	Lands	14
23. Close case file upon receipt of OGC's Final Title Opinion	Lands	12
Steps 16 and 17 can be reversed so that the Easement Deed is signed prior to OGC's preliminary title opinion. However, the sequence in Exhibit 01 reduces the time between the landowner signing the easement and receiving payment. The time sequence in Exhibit 01 has allowed time for the usual delays encountered in processing R/W cases. However, unusual title problems or condemnation action can increase case processing time. The sequence for condemnation cases begins with Step 18 in the above process and is as follows:
18. Prepare a report fully exploring the alternatives considered and why these alternatives were not selected. This report will also include the following:	Ranger	15
(a) Topographic maps showing the proposed route and the alternative routes considered. (b) Acreage of National Forest land accessed by the proposed road. (c) Amount of timber to be hauled over the road (R/W's needed for timber sales only).
14. Prepare Condemnation Report in Required format (See FSM 5482.31)	Ranger, Lands	15
15. Submit to Regional Forester	Lands	14

The remaining steps in the Condemnation process are in FSM 5481.2.

ET - District Engineering Tech. LO - Landowner

Eng. - S.O. Engineering Timber - S.O. Timber

Neg. - Negotiator Lands - S.O. Lands

EXHIBIT 01

Rights-of-Way Acquisition Process - Appraisal NOT Needed

Process	Responsibility	Lead Time (Months)
1. Review: R/W need in prescription, Management Plan objectives, Transportation plan needs for area outside prescription boundaries.	Ranger	36
2. Primary and alternative road locations and construction class.	Ranger, Eng. Neg., Timber, ET	26
3. Contact landowner--explain management plan objectives for area, cutting plans, specific road needs, etc. Request landowner suggestions as to how best meet our road needs. Obtain permission for engineering tech. to flag and for appraiser to look at location(s) on landowners property. (These can be general location(s) verbally agreed to by landowner and negotiator.)	Neg., LO	25
4. Submit OZ-5400-7 and legible topo map showing location(s) to S.O. Lands.	Neg.	24
5. Appraiser will arrange and make field examination with negotiator (usually within 10 days after receiving OZ-5400-7).	Lands Neg.	24
6. If appraiser certifies that a full appraisal is NOT needed, District will be authorized to proceed with negotiations and obligate up to a maximum payment as approved by the Forest Supervisor. These negotiations are predicated upon:	Lands	24
(a) The District Engineering Technician flags the usable route most acceptable to landowner.	ET
(b) Negotiator and landowner (or representative) walk the flagged route.	Neg., LO
(c) Location changes are reflagged by engineering technician and rewalked by landowner and negotiator.	ER, Neg., LO
(d) Final location and "terms" are agreed upon between landowner and negotiator and set forth in the Easement Option (Exhibit 3 and 4) and R.O.W. Easement Acquisition form, OZ-5400-1. (Lands will assist in writing description that will "stand" for 180 days.)	Neg., LO, Lands
(e) Obtain landowner signatures on option and OZ-5400-1. Pay landowner $1.00 for option. Notarizing the option is not required but can be done later as needed if negotiator is a notary.	Neg.	22
7. Submit following to lands: Easement Option Easement Acquisition Form, OZ-5400-1 Field Location Report Road Design Criteria and Management Plan, OZ-7700-10 Request for Cadastral Survey and Corner Cards, 7100-52, and -54	Neg.	22
8. Title insurance ordered and other data forwarded to Eng. S.O.	Lands	22
9. A 90-100 day time frame for surveying and to submit plat to Lands	Eng.	21
10. Commence clearing title problems	Lands, Neg., LO	21
11. Deed preparation and submission to OGC for approval (deed; plat; preliminary Title Certificate; Cert. of Use & Consent; Cert. of Possession; curative documents, if any).	Lands	18
12. Preliminary Title approval and Closing Check List.	OGC	17
13. Deed to District with any special instructions.	Lands	17
14. Title clearance. Deed signed, recorded, returned to S.O.	Neg., LO, Lands	16
15. Survey plat recorded in County Survey records and State Land Surveyor's Office	Eng.	15
16. Voucher payment.	Lands, B&F	15
17. Order Final Title Certificate.	Lands	15
18. Final package to OGC. Signed deed, Final title Certificate, Certificate of Possession, Certificate of Use & Consent, Closing Check List.	Lands	14
19. Final Title Opinion.	OGC	13
20. Post Atlas and send Copy of file to District	Lands	12
21. Close S.O. file upon receipt of R.O. files.	Lands	N/A

ET - District Engineering Tech. LO - Landowner

Eng. - S.O. Engineering Timber - S.O. Timber

Neg. - Negotiator Lands - S.O. Lands

Exhibit 03

EASEMENT OPTION (married)

KNOW ALL MEN BY THESE PRESENTS:

That for and in consideration of $1.00, cash in hand paid, JOHN DOE and MARTHA DOE, his wife , Grantor, hereby agrees to convey and sell unto the United States of America, Grantee, and its assigns, an exclusive easement for a road over and across the following described lands in the County of CRAWFORD, State of Arkansas:

TOWNSHIP 23 NORTH, RANGE 10 WEST, SECTION 36-EAST HALF SOUTHWEST QUARTER SOUTHWEST QUARTER (E1/2 SW1/4 SW1/4).

Said easement being a strip of land 40.00 feet wide, 20.00 feet right and 20.00 feet left of a centerline, about 400 feet long and occupying 0.40 acres, more or less, with such additional width as required for accommodation and protection of cuts and fills, and/or minor relief drainage ditches or wing ditches. The general location of said centerline is marked with blue and white stripe plastic flagging. It starts on FS road 150l about 0.3 miles above its junction with FS road 1400 and extends westerly across the subject property.

The right of entry is hereby granted to the Forest Service for the purpose of surveying and for preparing a more definitive description of said easement. This description will be incorporated into an approved Forest Service easement deed, which grantor agrees to sign for the sum of $200.00. Said easement deed will include, when appropriate, a relinquishment of dower and the following:

If the Regional Forester determines that the road, or any segment thereof, is no longer needed, the easement traversed thereby shall terminate. The termination shall be evidenced by a statement in recordable form furnished by the appropriate Regional Forester to the Grantor or its successors or assigns in interest.

The Grantor hereby covenants that it, its heirs, executors, administrators and assigns shall warrant and forever defend unto the Grantee, its successors and assigns the quiet and peaceable use and enjoyment of the herein granted easement against the lawful claims and demands of all persons whomsoever. This grant shall be binding upon the Grantor, its heirs, administrators, executors, and assigns, and shall run with and constitute a servitude upon the above described land.

This option shall expire 180 days after the date of signing.

Signed this day of 1992.

JOHN DOE MARTHA DOE

OZ-FS-5400-9

Exhibit 04

EASEMENT OPTION (single person)

KNOW ALL MEN BY THESE PRESENTS:

That for and in consideration of $1.00, cash in hand paid, JOSEPH DOE, unmarried, Grantor, hereby agrees to convey and sell unto the United States of America, Grantee, and its assigns, an exclusive easement for a road over and across the following described lands in the County of CRAWFORD, State of Arkansas:

TOWNSHIP 26 NORTH, RANGE 10 WEST, SECTION 15-SOUTHWEST QUARTER (SW1/4)

Said easement being a strip of land of variable width right and left of a centerline, about 1900.0 feet long and occupying 2.0 acres, more or less, with such additional width as required for accommodation and protection of cuts and fills, and/or minor relief drainage ditches or wing ditches. The general location of said centerline is along an existing road that extends easterly from the Chimney Rock Road across the subject into the Southeast Quarter of Section 15 and is marked by blueflagging with pink polkadots.

The right of entry is hereby granted to the Forest Service for the purpose of surveying and for preparing a more definitive description of said easement. This description will be incorporated into an approved Forest Service easement deed, which grantor agrees to sign for the sum of $1.00. Said easement deed will include, when appropriate, a relinquishement of dower and the following:

This option shall expire 180 days after the date of signing.

Signed this day of 1992.

JOSEPH DOE

OZ-FS-5400-9