United States of America, Plaintiff-counter-defendant-appellee, v. Randolph Jenks, Defendant-counter-claimant-appellant,national Inholders Association; New Mexico Cattle Growersassociation; New Mexico Farm and Livestock Bureau; Arizona& New Mexico Coalition of Counties for Stable Economicgrowth; New Mexico Wool Growers' Association; the Southeastern New Mexico Grazing Association; the New Mexico Farmand Livestock Bureau; and the Federal Lands Legalfoundation, Amici Curiae, 22 F.3d 1513 (10th Cir. 1994)

Defendant Randolph Jenks appeals the district court's order enjoining his use of three roads providing access to his inholdings¹  without Forest Service authorization pursuant to the Alaska National Interest Lands Conservation Act of 1980, 16 U.S.C. §§ 3101-3233 ("ANILCA"). We have jurisdiction under 28 U.S.C. § 1291.

This case of first impression within our circuit, involving a dispute over access to inholdings, is the modern legacy of early congressional enactments granting public land to private individuals to promote the settlement of the western portion of the United States. Principal among these enactments was the Homestead Act of 1862, which granted 160 acres of land to individuals who agreed to live on, and make improvements to the land for five years. See Act of May 20, 1862, ch. 75, 12 Stat. 392 (codified at 43 U.S.C. §§ 161-284) (repealed 1976).²  Although the Homestead Act made no provision for access to and from granted land over the retained lands of the United States, it was presumed that "an implied license" to use public lands would provide settlers with unimpeded access to their property. See Buford v. Houtz, 133 U.S. 320, 326, 10 S. Ct. 305, 307, 33 L. Ed. 618 (1890).

Homesteaders' unimpeded access across federal lands remained largely unchallenged by the federal government until the late nineteenth century, when "efforts expanded to protect the nation's natural resources from the results of what was perceived as overly generous land use policies." 43 Op.Att'y Gen. No. 26 at 4. In 1891, Congress passed a law authorizing the President to reserve forest lands from the public domain. See Act of March 3, 1891, ch. 561, Sec. 24, 26 Stat. 1103 (codified at 16 U.S.C. § 471) (repealed 1976). Pursuant to this Act, on February 22, 1897, President Cleveland issued proclamations placing approximately twenty million acres of public land in forest reserves. See Montana Wilderness Ass'n v. United States, 496 F. Supp. 880, 888 (D. Mont. 1980), aff'd on other grounds, 655 F.2d 951 (9th Cir. 1981). The proclamations prevented any settlement on lands reserved in the national forest system.

Following the issuance of President Cleveland's proclamations, Congress sought to protect the access rights of homesteaders and others owning property within the newly created forest reserves by enacting the Forest Service Organic Administration Act, ch. 2, 30 Stat. 34 (1897) (codified at 16 U.S.C. §§ 473-482, 551). Section 478 of the Organic Act ensured access over national forest land to "actual settlers" and "protect [ed] whatever rights and licenses with regard to the public domain existed prior to the reservation." Montana Wilderness, 496 F. Supp. at 888 (citation omitted) (construing 16 U.S.C. § 478).

By 1976, Congress had enacted a tangled array of laws granting rights-of-way across federal lands. See, e.g., 43 U.S.C. § 932 (repealed 1976) (granting rights-of-way for construction of highways over public lands). In an effort to untangle these laws and establish a statutory scheme for the management of forest lands, Congress passed the Federal Land Policy and Management Act ("FLPMA"). See Pub. L. No. 94-579, 90 Stat. 2744 (codified at 43 U.S.C. § 1701-1784 (1976)). Title V of FLPMA repealed over thirty statutes granting rights-of-way across federal lands and vested the Secretaries of Agriculture and Interior with authority "to grant, issue, or renew rights of way over [Forest Service and public lands] for ... roads, trails [and] highways." 43 U.S.C. § 1761(a). With the passage of FLPMA, Congress believed inholders "had the right of access to their [inholdings] subject to reasonable regulation ... under [ ] FLPMA." S.Rep. No. 413, 96th Cong., 2d Sess. 1, 310 (1980), reprinted in 1980 U.S.C.C.A.N. 5070, 5254 (reviewing access rights of inholders under FLPMA and explaining need for Alaska National Interest Lands Conservation Act of 1980, 16 U.S.C. §§ 3101-3233 ("ANILCA")). However, access rights to inholdings, especially those inholdings located in wilderness areas, became more uncertain when the Secretary of Interior concluded that FLPMA "authorized denial of access across public lands subject to wilderness review." Id.

In order to resolve "any lingering legal questions" concerning inholders' right of access to their property, Congress passed Sec. 3210(a) of ANILCA in 1980.³  See Pub. L. No. 96-487, 94 Stat. 2374 (codified at 16 U.S.C. §§ 3101-3233 (1980)). Section 3210(a) of ANILCA guarantees to inholders a threshold "right of access to their lands subject to reasonable regulation [under FLPMA] by ... the Secretary of Agriculture in the case of national forest [lands]."⁴  Adams v. United States, 3 F.3d 1254, 1258-59 (9th Cir. 1993) (citation omitted). While ANILCA mandates that the Forest Service provide reasonable access to all inholders, it directs inholders to "comply with rules and regulations applicable to ingress and egress to and from the National Forest System." 16 U.S.C. § 3210(a).

The current controversy results from the Forest Service's attempt to regulate Defendant's access to his inholdings pursuant to ANILCA and FLPMA. Defendant is the owner of three ranches located within the Apache National Forest in Catron County, New Mexico. The Centerfire Bog Ranch, the Double J. Ranch and the Patruff Ranch were originally patented to Defendant's predecessors in interest pursuant to the Homestead Act. Each of Defendant's ranches is completely surrounded by forest service land; consequently, Defendant must cross forest service land in order to access his property. Prior to the present controversy, Defendant had use of three separate roads, known as the Double J., Patruff, and Centerfire Bog Roads, to access his property.

In the early 1980s, the Forest Service sought to discontinue its longstanding practice of allowing Defendant free use of the three access roads. The Forest Service contacted Defendant and requested that he apply for a special use permit pursuant to ANILCA to obtain a legal right of access across the roads passing through forest service land.⁵  The proposed special use permit sought to among other things (1) impose conditions which regulate the use of the roads and prevent harm to the National Forest Service lands and (2) require Defendant to pay a fee for his continued use of the access roads. Defendant refused to comply with the request claiming that the terms of the proposed permit were inconsistent with his patent and common law and statutory access rights.

Following unsuccessful attempts to force Defendant to apply for a special use permit, the Forest Service initiated the instant action on May 17, 1990 in the federal district court of New Mexico, seeking an order enjoining Defendant from the use of the access roads without proper land use authorization from the Forest Service. Defendant counterclaimed contending that his patent, common law and statutory rights provided a legal right of access over the roads and that the regulations contained in the Forest Service's proposed special use permit were inconsistent with these rights. Defendant also brought a quiet title action seeking a determination of his patent and common law easement claims. See Kinscherff v. United States, 586 F.2d 159, 161 (10th Cir. 1978) (easements are real property interests subject to quiet title actions). The district court entered summary judgment in favor of the Forest Service and enjoined Defendant's use of the disputed roads without proper land use authorization from the United States. Defendant now appeals.

We review the grant or denial of a summary judgment motion de novo applying the same legal standard used by the district court. Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc. 912 F.2d 1238, 1241 (10th Cir. 1990) (citations omitted). Summary judgment is appropriate when there is no genuine dispute over a material fact and the moving party is entitled to judgment as a matter of law. Russillo v. Scarborough, 935 F.2d 1167, 1170 (10th Cir. 1991).

On appeal, the parties agree that Defendant has a right of access to his inholdings over forest service land. The source and extent of that access right, however, form the basis of the dispute. Defendant argues that rights granted pursuant to his patent or common law easements establish his right of access over the disputed roads and the terms of the proposed special use permit constitute an unreasonable regulation of these patent or common law rights. The Forest Service, on the other hand, argues that Defendant is not vested with any patent or common law rights which would establish a right of access over the disputed roads. Furthermore, the Forest Service argues the regulations contained in the proposed special use permit are reasonable.

Defendant has thus far refused to apply for a special use permit claiming that his patent or common law easement rights exempt him from such procedure. We disagree. Congress has the authority and responsibility to manage federal land. U.S. Const. art. IV, Sec. 3, cl. 2. By statute, Congress has delegated this authority to agencies such as the Forest Service who are obligated to oversee the management of national forest lands and protect the natural resources found therein. See Mountain States Legal Foundation v. Espy, 833 F. Supp. 808, 819 (D. Idaho 1993). Balanced with the Forest Service's obligation to protect national forest interests are the interests of inholders seeking access to property surrounded by forest service land. Congress passed ANILCA in order to accommodate both interests by assuring access to the private inholder while authorizing the Forest Service to regulate that access through "such terms and conditions as the Secretary of Agriculture may prescribe ... to secure to the owner the reasonable use and enjoyment" of his property. 16 U.S.C. § 3210(a). The legislative history of ANILCA contemplates that access under ANILCA is subject to the FLPMA and the rules and regulations promulgated thereunder. See S.Rep. No. 413, 96th Cong., 2d Sess. 310 (1980), reprinted in 1980 U.S.C.C.A.N. 5070, 5254.

As a means of assuring and regulating access to inholdings, the Secretary of Agriculture has promulgated regulations under ANILCA. These regulations set forth a permit system designed to document "the occupancy and use authorized on National Forest System lands or facilities and identify [ ] the landowner's rights, privileges, responsibilities, and obligations." 36 C.F.R. Sec. 251.110(d). Under the permit system, landowners seeking access to their inholdings must apply for a special use permit from the Forest Service. See 36 C.F.R. Sec. 251.112(a). Special use permits issued by the Forest Service must secure to the landowner the reasonable use and enjoyment of his property. See 36 C.F.R. Sec. 251.110(c).

An agency must be given substantial latitude in determining how to implement a statutory mandate. See McKinney v. Comm'r, 732 F.2d 414, 417 (10th Cir. 1983). "As long as an agency's procedures are reasonably designed to permit the agency to 'discharge [its] multitudinous duties,' a court should not interfere." Southern Motor Carriers Rate Conference v. United States, 773 F.2d 1561, 1571 (11th Cir. 1985) (quoting Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 543-46, 98 S. Ct. 1197, 1211-13, 55 L. Ed. 2d 460 (1978)). In the instant case, the Forest Service's permit procedure appears to be a reasonable method of implementing ANILCA's statutory mandate to provide access to inholders while assisting the Forest Service in the management and preservation of forest lands.

Furthermore, we conclude these permit procedures are not inconsistent with Defendant's asserted patent or common law rights. See Montana Wilderness, 496 F. Supp. 880, 889 (D. Mont. 1980) (common law easement providing access to inholdings subject to regulation by FLPMA permit), aff'd on other grounds, 655 F.2d 951 (9th Cir. 1981); Utah v. Andrus, 486 F. Supp. 995, 1009 (D. Utah 1979) (common law easement subject to regulation under FLPMA). Under basic principles of property law, these rights would still be subject to regulation by the Forest Service as the owner of the servient estate. See Restatement of Property Sec. 484 (1944) (servient owner may prevent uses of easement which are not reasonably required by normal development of dominant tenement); see also Columbia Gas Transmission, Corp. v. Limited Corp., 951 F.2d 110, 113 (6th Cir. 1991) (dominant estate holds rights correlative to rights of servient owner); Brooks v. Tanner, 101 N.M. 203, 207, 680 P.2d 343, 347 (1984) (burden on servient estate cannot be increased without consent of servient owner); Posey v. Dove, 57 N.M. 200, 208, 257 P.2d 541, 549 (1953) (dominant estate can make no alteration in dimensions, location, or use of the easement without consent of servient owner). We therefore hold that, regardless of Defendant's patent or common law rights, he must apply for a special use permit as provided for in 36 C.F.R. Sec. 251.112(a).

Although we agree with the district court that Defendant must apply for a special use permit, we believe the district court erred in declining to address Defendant's patent or common law claims. The district court concluded that "even if ... easements for each of the roads [exist, the Forest Service] can still regulate these access rights pursuant to ANILCA and FLPMA." A determination of Defendant's patent or common law claims to an easement was appropriate before the district court because Defendant properly raised these claims in a quiet title action. Furthermore, a determination of Defendant's patent or common law rights will play a pivotal role during the permit process the Forest Service seeks to enforce against Defendant. Pursuant to the Forest Service's own regulations which it is required to follow, see Bar MK Ranches v. Yuetter, 994 F.2d 735, 738 (10th Cir. 1993), the officer issuing a special use permit must ensure that the landowner "has demonstrated a lack of any existing rights ... of access available by deed or under State or common law " prior to issuing a permit. 36 C.F.R. Sec. 251.114(f) (1) (emphasis added). Although we leave it to the Forest Service to interpret this regulation, it appears that the Forest Service itself recognizes that any deed or common law access rights a landowner possesses may affect the terms of the permit or play a role in the decision to issue a permit. Because of the important role a determination of Defendant's patent or common law rights will play in the permit issuance process and because Defendant properly raised his patent and common law claims through a quiet title action in his counterclaim, we reverse the district court's grant of summary judgment in favor of the Forest Service as to Defendant's patent and common law claims and remand to the district court for further proceedings regarding Defendant's claims.

Given the important role the existence of Defendant's patent or common law rights will play in the Forest Service's permit process, we also address the district court's order which enjoined Defendant's use of the disputed access roads until he receives proper land use authorization from the Forest Service. Under the court's order, Defendant not only must apply for a special use permit, but must also receive a special use permit from the Forest Service before the injunction is lifted. We review the district court's grant of an injunction for an abuse of discretion, Prows v. Federal Bureau of Prisons, 981 F.2d 466, 468 (10th Cir. 1992), and we have authority to modify an injunction if it is overbroad, see 28 U.S.C. § 2106; see also In re Packer Avenue Associates, 884 F.2d 745, 748 (9th Cir. 1989); Wood v. Santa Barbara Chamber of Commerce, 705 F.2d 1515, 1523 n. 7 (9th Cir. 1983).

A party may be enjoined from committing certain acts without proper authorization from an authorized agency official. See 42 Am.Jur.2d Injunctions Sec. 165 (1969). For example, in Cablevision of Texas v. Oklahoma Western Telephone Company, 993 F.2d 208, 210 (10th Cir. 1993), Defendant began constructing a cable television system in Clayton, Oklahoma. Upon learning of Defendant's construction activity, the Plaintiffs sought and obtained a permanent injunction in district court which prevented the construction of a communications facility without a certificate of authorization from the Federal Communications Commission ("FCC") as required by 47 U.S.C. § 214. Id. On appeal, we noted that because the Defendant had failed to comply with the certification procedures of Sec. 214, the district court properly enjoined the construction of Defendant's cable facility until it received proper FCC authorization. Id.

Unlike the statute and FCC regulations in Cablevision, which required a party to receive a permit prior to construction, the Forest Service's ANILCA regulations may not require a permit for road use if Defendant can demonstrate "existing rights of access available by ... common law." 36 C.F.R. Sec. 251.114(f) (1). The district court's order enjoining use of the roads until a permit is obtained therefore fails to account for the role the existence of any patent or common law rights of access may play within the Forest Service's permit process. We therefore conclude the district court's injunction preventing Defendant's use of the access roads without land-use authorization was overbroad in that it enjoined Defendant's use of the roads until he actually obtained a permit. Because the Forest Service may not be able to legitimately require that Defendant actually receive a permit if Defendant possesses any patent or common law rights of access, but can legitimately require Defendant to apply for such permit, we hereby modify the injunction, enjoining Defendant from use of the access roads until such time as he applies for a special use permit as required by 36 C.F.R. Sec. 251.112(a). Cf. Weinberger v. Romero-Barcelo, 456 U.S. 305, 315, 102 S. Ct. 1798, 1804-05, 72 L. Ed. 2d 91 (1982) (compliance with statute achieved by order directing a party to apply for a permit rather than enjoining party altogether).⁶ 

Although Defendant has yet to apply for a special use permit, Defendant nevertheless challenges the terms of the proposed permit submitted to him by the Forest Service. See Appendix attached to this opinion. Defendant claims the terms of the proposed permit are unreasonable and deprive him of patent or common law easement rights granted to him through land patents issued to his predecessors in interest under the Homestead Act.⁷  Defendant also claims the terms of the proposed permit constitute a Fifth Amendment taking of his property rights. The district court held that the terms of the proposed permit were reasonable and did not unlawfully infringe on Defendant's property rights.

Following the district court's decision, the Forest Service, in its brief to this court, maintained for the first time that the special use permit presented to Defendant, see Appendix, "was merely a proposal and was subject to negotiation" and that "there was no indication ... that this permit, unamended, was going to be the permit for [Defendant]."⁸  While we "may not accept appellate counsel's post hoc rationalizations for agency action," Burlington Truck Lines v. United States, 371 U.S. 156, 168-69, 83 S. Ct. 239, 246, 9 L. Ed. 2d 207 (1962), we may consider appellate counsel's clarification of the action the agency has taken in an order because " [w]e must know what a decision means before the duty becomes ours to say whether it is right or wrong," Securities & Exchange Comm'n v. Chenery Corp., 332 U.S. 194, 197, 67 S. Ct. 1575, 1577, 91 L. Ed. 1995 (1947) (quoting United States v. Chicago, M., St. P. & Pac. R., 294 U.S. 499, 511, 55 S. Ct. 462, 467, 79 L. Ed. 1023 (1935)).

Because we are now informed that the proposed permit may not be applied to Defendant and is "subject to negotiation," the terms of the proposed permit are merely illustrative and any comment by this court on the terms of the proposed permit would be an advisory opinion and thus improper. See Turner v. Chicago Housing Authority, 969 F.2d 461, 464 (7th Cir. 1992) (comment on constitutionality of lease provisions not yet enforced would be improper as advisory); see generally Flast v. Cohen, 392 U.S. 83, 96-97, 88 S. Ct. 1942, 1950-51, 20 L. Ed. 2d 947 (1968) (federal courts may not issue advisory opinions). Furthermore, due to the Forest Service's changed position on appeal, the district court's finding that the terms of the permit were reasonable is hereby rendered moot. We therefore reverse the district court's finding regarding the reasonableness of the terms of the permit and remand to the district court with instructions to vacate that portion of its opinion.⁹ 

In conclusion, we AFFIRM the district court's order as hereby MODIFIED, enjoining Defendant's use of the disputed access roads until he applies for a special use permit pursuant to ANILCA. We REVERSE the district court's finding regarding the reasonableness of the terms of the permit. We also REVERSE the district court's grant of summary judgment in favor of the Forest Service as to Defendant's patent and common law claims and REMAND to the district court for further proceedings consistent with this opinion.

APPENDIX

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