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Inholdings and Rights of Way Toolbox

The Inholdings and Rights of Way Toolbox is a 'work in progress' and represents only the information available. In addition to the resources provided here, you may also be able to obtain advice and recommendations through discussion on Wilderness Connect. Date of last update: 5/30/17.
  1. Introduction
    1. Overview
      This tool box contains materials pertaining to the access to private or state lands within wilderness areas, as found in Section 5 of the Wilderness Act of 1964. The private lands may be owned, or may be subject to valid mining claims or other valid occupancies (such as facilities associated with a water right). (For all other rights pertaining to mining, see the MINERALS Toolbox.)

      This toolbox does not cover Rights-of-Way associated with uses other than this broad group of inholdings and valid occupancies. Those are covered in the RIGHTS-OF-WAY Toolbox.

      Nor does it cover claims of RS2477 Rights-of-Way. Note that such are public rights-of-way, and do not apply to private access.

      This toolbox does not cover access to permitted structures for which there is no valid existing right (e.g., livestock facilities, which are addressed in the GRAZING toolbox).

      NOTE: Though the Arthur Carhart National Wilderness Training Center has made every effort to provide materials that are legally accurate, inholding access can readily become contentious, and it is critical that you contact your solicitor or general counsel if inholding access is an issue in your wilderness.
    2. Definitions
      1. Inholding
        Non-federal land within the boundary of a wilderness designated by Congress. It does not include edge-holdings or cherry-stemmed holdings.

        Inholding figure
      2. Edge-holding
        Non-federal land adjacent but not within the boundary of Wilderness designated by Congress. Edge-holdings usually are not accessed by a right-of-way through the wilderness.

        Edge-holding figure
      3. Cherry-stem holding
        Non-federal land surrounded by lands designated by Congress as Wilderness except the point at which a non-wilderness road intersects the land. As neither the cherry-stemmed holding or the access to it are within the wilderness boundary, the provisions of the Wilderness Act do not apply.

        Cherry-stem-holding figure
    3. Basis in the Wilderness Act
      Section 5 of the Wilderness Act of 1964 details how we are to manage State and private lands within wilderness areas:
      Sec. 5. (a) In any case where State-owned or privately owned land is completely surrounded by national forest lands within areas designated by this Act as wilderness, such State or private owner shall be given such rights as may be necessary to assure adequate access to such State-owned or privately owned land by such State or private owner and their successors in interest, or the State-owned land or privately owned land shall be exchanged for federally owned land in the same State of approximately equal value under authorities available to the Secretary of Agriculture: Provided, however, That the United States shall not transfer to a state or private owner any mineral interests unless the State or private owner relinquishes or causes to be relinquished to the United States the mineral interest in the surrounded land.

      (b) In any case where valid mining claims or other valid occupancies are wholly within a designated national forest wilderness area, the Secretary of Agriculture shall, by reasonable regulations consistent with the preservation of the area as wilderness, permit ingress and egress to such surrounded areas by means which have been or are being customarily enjoyed with respect to other such areas similarly situated.

      (c) Subject to the appropriation of funds by Congress, the Secretary of Agriculture is authorized to acquire privately owned land within the perimeter of any area designated by this Act as wilderness if (1) the owner concurs in such acquisition or (2) the acquisition is specifically authorized by Congress.
      Briefly, subsection (a) guarantees "adequate" access to inholdings and subsection (b) guarantees "reasonable" regulations will be used to provide access to valid mining claims or other valid occupancies. Naturally, the definitions of "adequate" and "reasonable" have been (and can be expected to continue to be) the subjects of litigation. See later sections of this Toolbox, Inholding Access in Subsequent Legislation and Relevant Case Law, for further information.

      Sub-section (c) makes it clear that the federal agency can purchase or exchange for an inholding with the owner's consent or if specifically authorized by Congress. (To date, Congress has not authorized a specific acquisition absent the owner's consent.) Purchased or exchanged lands automatically become designated as wilderness.

      Under the authority of Section 6(a) of the Wilderness Act, inholdings can also be given to the federal agency for management as wilderness. In addition, edge-holdings can also be given to the agency and automatically become part of the Wilderness after sixty days notice to the Congress.
    4. Inholding Access in Subsequent Legislation
    5. Case Law (Access)
  2. Management Policies, Guidelines, Processes, and Templates
    1. Multiple Agency Comparison
    2. BLM
      1. Regulations (43 CFR 6305)
      2. Policy (6340 1.6.C.9)
    3. FWS
      1. Policy - Natural and Cultural Resources Management, Part 610 Wilderness Stewardship
        1. Chapter 2 Wilderness Administration and Resource Stewardship, 610 FW 2
          2.10 May the Service authorize access through wilderness to non-Federal land where rights to access do not exist? Where there is existing access or a right of access through nonwilderness land, we will generally not allow access through wilderness other than that available to the general public. We will give State or private landowners, and their successors in interest, effectively surrounded by or adjacent to wilderness, access to their land through wilderness where such access is appropriate and compatible with the purposes of the refuge, including the purposes of the Wilderness Act, and does not involve uses generally prohibited by the Wilderness Act. We will only approve that combination of routes and modes of travel which will, as determined by the Refuge System, cause the least lasting impact on wilderness character. We will authorize such access through a renewable special use permit for a period not to exceed 5 years. See 610 FW 5 for some of the additional provisions applicable in Alaska.
        2. Chapter 5 Special Provisions for Alaska Wilderness, 610 FW 5
          5.6 What special provisions apply to access to inholdings in Alaska wilderness areas? Section 1110(b) of ANILCA requires that we give the owners of valid inholdings adequate and feasible access, for economic or other purposes, across a refuge, including a designated wilderness area. An inholding is State-owned or privately owned land, including subsurface rights underlying public lands, valid mining claims, or other valid occupancy that is within or effectively surrounded by one or more conservation system units. We require a right-of-way permit for access to an inholding only when section 1110(b) does not provide adequate and feasible access without a right-of-way permit (43 CFR 36.10(b)). When a right-of-way permit is necessary under this provision, we process the application in accordance with regulations in 43 CFR 36.10 and 50 CFR 29.21.
        3. Chapter 5 Special Provisions for Alaska Wilderness, 610 FW 5
          5.8 What special provisions apply to authorization of temporary access to non-Federal lands?
          A. Section 1111 of ANILCA requires the Service to authorize and permit temporary access across wilderness to State or private land by a landowner for the purpose of survey, geophysical, exploratory, or other temporary uses where access will not result in permanent harm to the resources of the area or lands. Regulations at 43 CFR 36.12 implementing section 1111 of ANILCA define temporary access to State or private lands as limited, short-term access, which does not require permanent facilities.

          B. The landowner seeking access must complete an application for temporary access (SF 299). After evaluating the application and ensuring that no permanent harm will result to the resources of the area, the refuge may issue a special use permit with the necessary stipulations and conditions.
    4. FS
      1. Regulations (36 CFR 293.12, 293.13), Policy (FSM 2320.5.15; 2326), and Management Practices
  3. Examples of Plans or Guidance
    1. 1995 guidance for authorizing inholding access in areas designated by the California Desert Protection Act
    2. Documents supporting edge-holding donation as wilderness addition
      1. Inventory of potential addition
      2. EA supporting Wilderness designation of donated land
      3. Transmittal memos to Secretary and Congress supporting addition
  4. Training Materials
    1. Wilderness in the Courts Webinar Series, Session 3: Inholding Access
      This webinar was held on May 15, 2013 at 12:30 PM Eastern time. The 90-minute session featured Peter Appel, the Alex W. Smith Professor of Law at the University of Georgia Law School, and introduced participants to the topic through case studies analyzing access for inholdings, inholdings and grazing, private rights, and mining claims.
      1. Recording
      2. PowerPoint
  5. Resources and References
    1. Pearson, M. and Wallace, G. H. (1994). Prioritizing the acquisition of Wilderness inholdings. Fort Collins, CO: Department of Natural Resource Recreation and Tourism, Colorado State University.
    2. Tanner, R. (2002). Inholdings within Wilderness: Legal Foundations, Problems, and Solutions. International Journal of Wilderness, 8(3): 9-14.
    3. Wilderness Stewardship Reference System (WSRS)
      1. General Administration > Inholdings
      2. General Administration > Access